Zhou (Migration)

[2022] AATA 500

Zhou (Migration) [2022] AATA 500 (28 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Miao Zhou
Mr Jirong Zhu
Miss Yunjie Zhu
Miss Yunyi Zhu

REPRESENTATIVE:  Mr Jiawei Feng (MARN: 1802373)

CASE NUMBER:  1921922

HOME AFFAIRS REFERENCE(S):          BCC2016/1039418

MEMBER:Terrence Baxter

DATE:28 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 28 January 2022 at 1:42pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Accountant – subject of an approved nomination – no response to s 359A invitation – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A

Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 July 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 10 March 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Accountant for Optimal Management Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 28 June 2019 and that accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223 as a whole as required.

6. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl 186.311) requiring each of them to be a member of the family unit of a person who has met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 8 August 2019.

8. The applicants were originally represented in relation to the review by their registered migration agent, Mr Yuxin Fu, of Austin Migration and Education Group. From 5 January 2022, the applicants were represented in relation to the review by their registered migration agent, Mr Jaiwei Feng, also of Austin Migration and Education Group.

9. On 10 January 2022, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

   On 5 January 2022, the Tribunal determined that it had no jurisdiction in respect of an application for review of a decision to refuse the Employer Nomination lodged by Optimal Management Pty Ltd.

   This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.186.223(1).

   If we rely on this information in making our decision, we may find that Mrs Miao Zhou does not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

   We may subsequently find that Mr Jirong Zhu, Miss Yunjie Zhu and Miss Yunyi Zhu do not meet the secondary visa criterion cl.186.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 186 visa, and affirm the decision under review in respect of their applications.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 24 January 2022.

10. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. The applicants failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has been received by the Tribunal.

11. Where a review applicant is invited to comment on or respond to information in accordance with s 359A of the Act and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(2) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

12. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

13. The Tribunal has taken into account that the applicants have been aware since 31 July 2019 of the reasons for the visa application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 10 January 2022 were set out in that correspondence.

14. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 10 January 2022 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 187.223 and cl 186.311 of Schedule 2 to the Regulations.

15. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

18. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

19. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn;

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B of the Regulations); or it is reasonable to disregard any such information;

    ·the position is still available to the applicant; and

    ·the visa application was made no more than six months after the nomination of the position was approved.

20. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Accountant approved, with the applicant as nominee, on 10 March 2016. The nomination application was refused on 28 June 2019 and the nominator sought review of that decision with the Tribunal on 12 July 2019.

21. On 20 December 2021, the Tribunal recorded that the nominator, Optimal Management Pty Ltd, was deregistered on 21 August 2021 and found that it had no jurisdiction in respect of the nominator’s application to review the decision to refuse the nomination application.

22. The Tribunal notes that the application for nomination for the position of Accountant has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 186.223(2) is not met.

23. Therefore, cl 186.223 is not met in respect of the applicant.

24. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

25. In relation to the second named, third named and fourth named applicants, the Tribunal notes that cl 186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa and is not the holder of a Subclass 186 visa, it follows that the second named, third named and fourth named applicants do not satisfy the requirements of cl 186.311. The Tribunal finds accordingly.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.