Zhu (Migration)

[2020] AATA 4213

Zhu (Migration) [2020] AATA 4213 (7 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yanan Zhu
Mr James Lee
Ms Jasmine Lee

CASE NUMBER:  1900062

HOME AFFAIRS REFERENCE(S):          BCC2017/3615057

MEMBER:Andrew McLean Williams

DATE:7 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 07 August 2020 at 3:18pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – no approved nomination – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13; Schedule 2, cls 186.233, 186.311

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 13 December 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas, under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visas on 3 October 2017. 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 (‘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. The delegate refused to grant the visas because the first-named applicant did not meet the requirements of cl.186.233 of Schedule 2 to the Regulations, because the nomination of a position application made by Beer Town Restaurant & Brewpub Pty Ltd on behalf of the first-named applicant (being the nomination referred to in cl.186.233(1)), had been refused by a delegate of the Minister, on 29 October 2018. That refusal decision was not ever challenged by Beer Town Restaurant & Brewpub Pty Ltd by means of an Application for Review before the Tribunal, meaning that the refusal decision remains extant, such that the first-named applicant does not have the necessary nominated position that has been approved by the Minister.

5. The Tribunal wrote to the applicants pursuant to s.359A of the Act pointing out the matters identified in the preceding paragraph, and inviting submissions thereon. No response was received by the Tribunal. In those circumstances the applicants have lost the right to a hearing before the Tribunal, and the Tribunal now proceeds to determine the application for review on the basis of the available evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first-named applicant can satisfy the requirements of cl.186.233(1).

   Nomination of a position

8. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·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 r.1.13A and r.1.13B); 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.

10. The situation remains as identified in paragraph 4 of these reasons. The application for approval of a nominated position made by Beer Town Restaurant & Brewpub Pty Ltd, being the nomination referred to in cl.186.233(1), was refused by a delegate of the Minister, on 29 October 2018. That decision was never subsequently overturned, such that the first-named applicant continues to not have the necessary nominated position that has been approved by the Minister. In these circumstances it is impossible for the first-named applicant to satisfy the requirements of cl.186.233(1), and the other applicants cannot meet the requirements of cl.186.311.

11. Therefore, cl.186.233 is not met.

12. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

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

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.