ZHU (Migration)

[2020] AATA 1617

ZHU (Migration) [2020] AATA 1617 (8 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Qiong ZHU
Mr Hao ZHANG
Mr Zhouming ZHANG

CASE NUMBER:  1819496

HOME AFFAIRS REFERENCE(S):          BCC2017/2189303

MEMBER:Penelope Hunter

DATE:8 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2020 at 10:04am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – non-appearance before the Tribunal – hearing invitation misunderstood – application reinstated ­­–­ Temporary Residence Transition stream – Conference and Event Organiser – subject of ­an approved nomination – nominator deregistered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 18 June 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 21 June 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. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Conference and Event Organiser on the basis of a nomination her employer Fook Yuen (Australia) Food and Beverage Pty Ltd. The second named applicant and third named applicant have applied for the visas on the basis of being a member of the family unit of the applicant.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination lodged by Fook Yuen (Australia) Food and Beverage Pty Ltd was refused by the Department on behalf of the Minister.

6. The Tribunal received an application for review of the delegate’s decision from the applicants on 4 July 2018.

7. On 2 March 2020, the Tribunal wrote to the applicants and invited them to attend a hearing before the Tribunal to give evidence and present arguments on 9 April 2020. On 25 March 2020, due to the COVID-19 pandemic the Tribunal again wrote to the applicants and advised that their hearing had been converted to a telephone hearing, the Tribunal set out the relevant contact number for the applicants as notified to the Tribunal, and the applicants were advised that the Tribunal would call them at the appointed time on 9 April 2020.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

8. On 9 April 2020, the Tribunal was unable to contact the applicants to appear by phone before it on the day and at the scheduled time. The Tribunal contacted the applicants’ appointed registered migration agent who advised that he had spoken with the applicant regarding the hearing but that she did not provide instructions as to whether she would attend the hearing. He further sent an email to the Tribunal on 9 April 2020 that he had also been unable to contact the applicants on the morning of the hearing.

9. On 9 April 2020, the Tribunal determined to dismiss the matter for non-appearance, and the applicants were notified that they had 14 days to seek to have the matter reinstated and provide a reasonable explanation for their non-appearance.

10. Pursuant to an application made by the applicants on 15 April 2020, the Tribunal determined to reinstate the matter on 17 April 2020 on the basis of the submission by the applicant that she misunderstood the hearing invitation.

11. On 7 May 2020, the applicants were again invited to appear before the Tribunal by telephone to give evidence and present arguments. Once more, the Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant only participated in the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The applicants were represented in relation to the review by their registered migration agent, who also participated in the hearing by telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the nomination associated with the visa application of the applicant has been approved.

    Nomination of a position

15. 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.

16. 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 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.

17. The applicant has applied for the visa on the basis of a nomination in the position of Conference and Event Organiser made by her nominating employer Fook Yuen (Australia) Food and Beverage Pty Ltd. As set out in the decision of the delegate, and submitted to the Tribunal by the applicants, this nomination was refused by the Department on 10 May 2020.

18. On 17 April 2020, the Tribunal wrote to the applicants pursuant to the provisions of s.359A of the Act, inviting the applicants to provide comment on information that it considered would be a reason or part of a reason for affirming the decision under review in writing. The information related to information from the Australian Securities and Investment Commission (ASIC) that the applicant’s employer Fook Yuen (Australia) Food and Beverage Pty Ltd was deregistered on 19 July 2010 and the Tribunal’s records that it was found to have no jurisdiction in relation to the application by Fook Yuen (Australia) Food and Beverage Pty Ltd to review the Department’s decision. The Tribunal explained that the relevance of the information and informed the applicants that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements in cl. 186.223(2) of Schedule 2 to the Regulations.

19. In a submission dated 20 April 2020, the representative for the applicants confirmed that the applicant’s nominating employer had been deregistered and was no longer operating, however the applicant wished to say that the de-registration of her nominating employer was due to circumstances beyond her control.

20. At the hearing the applicant confirmed that she has ceased working for her nominating employer in 2019, yet she argued that the de-registration did not mean that she did not have the skills and qualifications to perform the role. She claimed to have invested considerable time with her former employer in pursuit of the visa, they had not told her that they would deregister and it was unfair that this now affected her visa application. Additionally, the applicant claimed that she had spent so many years working hard to improve her skills in the role and her English capabilities. She really liked Australia and was involved with her church and a community centre volunteer. She had been in Australia many years and developed a love for the country. If granted a visa, in the future the applicant suggested that she could register a company and make investments in the agricultural industry to contribute to jobs for farmers. Further, that from any income she would earn in the future she would contribute to Australian taxation revenue.

21. The Tribunal has taken into consideration the submissions of the applicant, and it accepts that she has invested considerable time in the hope of achieving a permanent visa and that the deregistration of the company was a circumstance beyond her control. However, in relation to the application under review, on the evidence before it, the Tribunal finds that the relevant nomination by Fook Yuen (Australia) Food and Beverage Pty Ltd has not been approved. It therefore follows that the applicant has not met cl.186.223(2) and cl. 186.223 of Schedule 2 to the Regulations has not been met as a whole.

22. 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. The Tribunal has no discretion in this matter.

23. As the second and third named applicants have applied for the visa as members of the family unit of the applicant  and because the applicant does not meet the primary requirement for the visa, and there is no evidence to suggest that the second named applicant or third named applicant meet the primary requirement for the visa, the Tribunal also affirms the decision in respect of the second and third named applicants.

    DECISION

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

    Penelope Hunter
    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.