Zhu (Migration)

[2020] AATA 2016

Zhu (Migration) [2020] AATA 2016 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zhaohong Zhu
Mr Yong Zhao
Mr Dayu Zhao

CASE NUMBER:  1729150

HOME AFFAIRS REFERENCE(S):          BCC2016/4162564

MEMBER:K. Chapman

DATE:25 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 25 May 2020 at 12:51pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – related position nomination refused – refusal affirmed on review – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

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 Immigration and Border Protection on 2 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant applied for the visa on 9 December 2016, including the second and third named applicants in the application. 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. In the present case, the first named applicant (hereafter ‘the applicant’) is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate General Manager (ANZSCO Code 111211). The visa application was made in connection with an application for nomination by Tong Ling Entertainment Pty Ltd (‘the nominator’).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations, because she was not the subject of an approved nomination as required. On 22 November 2017, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s visa refusal decision was provided with the application for review.

6. The applicant appeared before the Tribunal by telephone on 22 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed that she understood the interpreter and was comfortable participating in the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.186.233(3).

   Nomination of a position

9. 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.

10. 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.

11. The applicant provided vague oral evidence to the Tribunal regarding her employment history. For example, she could not remember when she last worked in Australia, nor could she remember the name of her most recent employer. The Tribunal also ascertained from the applicant that she was now resident in Sydney, having moved from Queensland.

12. During the review hearing, pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

    ·The application for approval of the nominated position made by Tong Ling Entertainment Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.

13. The Tribunal indicated that this information is relevant to the review as it tends to suggest that there is not an approved nomination relating to the applicant with respect to her visa application. The Tribunal indicated that if it were to rely upon the s.359AA information, it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that she understood why the information is relevant to the review. The applicant was offered additional time before commenting on or responding the information, and she requested an adjournment. Following the adjournment, the applicant informed the Tribunal that initially she had no idea the nomination was not approved but found out subsequently. She was not clear on why the nomination was refused. The Tribunal has carefully considered all evidence submitted by the applicant in connection with this review.

14. The Tribunal is satisfied that the nomination of the applicant for the position of Corporate General Manager (ANZSCO Code 111211) has not been approved. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.186.233(3) are not satisfied.

15. 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.

16. It follows that the second and third named applicants also do not meet the criteria for the grant of the Subclass 186 visa.

    DECISION

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

    K. Chapman
    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

    (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.