Bai (Migration)

[2019] AATA 1945

Bai (Migration) [2019] AATA 1945 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yufei Bai
Ms Shuhang Li

CASE NUMBER:  1710564

HOME AFFAIRS REFERENCE(S):           BCC2016/1528565

MEMBER:Cathrine Burnett-Wake

DATE:18 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2019 at 4:09pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent)(Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination not approved – nominator sought review – refused – application lodged under wrong company – second named applicant does not meet secondary visa criteria – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cls 187.233, 187.311, rr 1.13A, 1.13B

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 April 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the associated nomination by JP Moe Pty Ltd was not approved.

6. The applicant appeared before the Tribunal on 15 February 2018 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent; however the representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

10. Clause 187.233 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, located in regional Australia. 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.

11. In addition, this criterion also requires that:

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

12. At hearing the Tribunal, pursuant to s.359AA, of the Act provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

13. The particulars of the information were that the application for approval of the related nominated position, made by JP Moe Pty Ltd was refused by a delegate of the Minister for Immigration. And, further, that the nominator sought a review of that decision but it was recently dismissed by the AAT. Meaning that the nominator’s application for the nominated position has not been approved.

14. It was explained to the applicant that this information is relevant to their review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination. The Tribunal asked the applicant if he required additional time to comment on the information, however, he said he wished to proceed with the hearing.

15. The applicant conceded that there was no nomination. However, that he wished to explain to the Tribunal the circumstances that led to the refusal. He explained that there was a mix up with the paperwork regarding the nomination and that the migration agent who prepared the primary visa application submitted documents relating to the wrong company. He told the Tribunal that his application was lodged under the wrong company and that when he realised the issue, raised it with the Department, however, that it was too late as they had already made their decision.

16. The applicant stated the migration agent who lodged his visa application made a very big mistake and that as a result it has had serious consequences for him. He further stated he had lost faith in the Australian legal system especially as he had done everything correct, and the situation he had found himself in now was through no fault of his own.

17. The applicant stated to the Tribunal that he had secured another employer to nominate him and that he had sought the services of a new migration agent to assist him with the process.

18. The Tribunal explained to the applicant that it had no discretion to consider the circumstances that led to the nomination being refused, and that it was solely determining whether there was an approved nomination and that the information before the Tribunal was there was no approved nomination.

19. The facts are not under dispute, and both parties agree that there is no approved nomination.

20. Therefore, cl.187.233 is not met.

21. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

22. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant a subclass 187 visa to the second named applicant as she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that she can meet the primary criteria in her own right.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Cathrine Burnett-Wake
    Member

    
    

    ATTACHMENT A

    187.233(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)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(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 no more than 6 months after the Minister approved the nomination.