Bui (Migration)

[2023] AATA 3040

Bui (Migration) [2023] AATA 3040 (7 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thuy Duong Bui
Mr Van Hung Le

REPRESENTATIVE:  Dr Xiaokang Zhou (MARN: 0531451)

CASE NUMBER:  2004736

HOME AFFAIRS REFERENCE(S):          BCC2017/4322026

MEMBER:Stephen Witts

DATE:7 August 2023

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 07 August 2023 at 8:36am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Primary Produce Inspector – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 187.233

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

2. The applicants applied for the visas on 17 November 2017. 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 (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 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 the Direct Entry stream, to work in the nominated position primary produce inspector ANZSCO code 311399.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the because the delegate was not satisfied that the applicant’s other subject of an approved nomination.

6. The Tribunal notes that on 14 July 2023 the applicant was invited to attend a hearing and present evidence and arguments in relation to the application.

7. The Tribunal further notes that the nominator was also invited to attend the hearing as a linked matter (case number 2001794) and responded via its nominated representative to the invitation on 17 July 2023 stating that “no, I will not participate in the hearing, and consent to the tribunal making a decision on the papers without taking further steps to allow me to appear”.

8. In response to this the Tribunal contacted the applicant (who is a nominee in this matter) in a letter dated 18 July 2023, regarding the matter requesting the applicant to inform the Tribunal as to whether it will be appearing in the matter. The Tribunal notes that on 18 July 2023 a hearing response was provided to the Tribunal also stating as above that the applicant will not be attending the hearing.

9. The Tribunal further notes that on 19 July 2023 the Tribunal contacted the applicant’s representative requiring a confirmation that the applicant will not be attending the hearing and consents to a decision being made on the papers without taking further steps to allow the applicant to appear.

10. The Tribunal notes that on 19 July 2023 it was contacted via email by the applicant’s representative stating that the applicant will not participate in the hearing and consents to the Tribunal making a decision on the papers.

11. The Tribunal has considered this matter carefully and proceeds to make a decision on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicants are the subject of an approved nomination.

    Nomination of a position

14. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

15. 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 reg 1.13A and reg 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.

16. In accordance with the above the Tribunal has considered all the evidence and material before it.

17. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision for the nominator, DL and M Leslie, by the applicant. In this decision it was stated that on 15 November 2017 the nominator lodged a nomination application for the position of fruit and vegetable Inspector which it indicated relates to the ANZSCO occupation code 311399 on behalf of Ms Thi Thuy Duong Bui, the nominee.

18. According to the delegate it assessed that the business stated that it employs 4 Australian citizen employees, that it has been trading since 1999 and is a grape farm producing small and medium table grapes, and that the nominator advised that on 6 July 2017 it decided to recruit a full-time fruit and vegetable Inspector to fill a new position.

19. According to the delegate the nominator provided some financial material for the period July 2016 until May 2017 which the delegate contended does not demonstrate the business’s financial position currently and does not substantiate a claim that the business has been growing steadily. The delegate also stated that an organisation chart and job description was provided but that there was no clear evidence of the nominator’s operation as a grape farm, or any evidence of the goods produced.

20. According to the delegate based on this information it made a decision that the application for approval has not identified a need for the nominator to employ a paid employee to work in that position under the nominator’s direct control.

21. The Tribunal notes it has been provided with material for consideration including a job description for a fruit and vegetable inspector, a copy of the relevant occupation code, job advertisements for that position, some ABN and ATO material, an RCB form, a resume for the nominee, an employment contract, an organisation chart, and a submission.

22. The Tribunal notes the submission referred to above stated that the nominator is an established family partnership in Victoria located in Robinvale, that it runs a small to medium size grape farm producing table grapes and that it has connections with wholesalers and supermarkets. It was stated that the nominated position of a full-time fruit and vegetable inspector is necessary to the operation of the business to ensure that the commodities produced are of appropriate standard, and to provide technical support to improve the business’s operations. It was stated that a fruit and vegetable inspector needs to engage in quality-control of the product, oversee and manage compliance with regulations, identify signs of infestation to mitigate pest and disease control, improve the marketability of the product, build consumer confidence, and that, in summary, the position is necessary to demonstrate the business’s commitment to producing safe and high-quality grapes.

23. It was further stated that the nominated position is new to the business and was not created for the purpose of facilitating the entry of the nominee to Australia. It was stated that the position is necessary, and that the business placed an advertisement in the local newspaper in July 2017 and that the nominee was considered a suitable candidate and that the business decided to employ her.

24. It was stated that the nominee has obtained a bachelor level qualification in food technology in Vietnam and master’s level qualifications in food science in Australia, and that her qualifications are relevant to the job. It was also stated that the nominee had also gained more than three years’ experience as a quality assurance officer at an agricultural authority.

25. It was further stated that the business arranged an interview for her and that it was determined that she was a suitable candidate, that she is not related to the business and that the reason for the nomination is not to create a position for the purpose of facilitating the entry or stay of the nominee in Australia.

26. Included also was an organisation chart indicating that there are two partners in the business, Dean and Maryanne Leslie, Dean Leslie also being an operations manager, a non-specific number of farmhands, and a position for a fruit and vegetable inspector, noted as vacant for the nominee.

27. Also included was an employment contract between the nominator and the nominee with a base salary listed of $65,000 per annum plus superannuation. This contract was signed by the nominator on 7 July 2023, and by the nominee on 14 July 2023. It was indicated that the period of commencement shall be once the nominee succeeds in her application for a 187 visa.

28. In regard to financial material the Tribunal notes that in the financial statements provided the business at end June 2022 and end June 2021 respectively listed an income of approximately $500,000 and approximately $900,000, total wages of approximately $40,000 and approximately $30,000, and a loss listed of approximately $200,000 and $60,000.

29. The Tribunal has considered the evidence provided very carefully and notes that from the evidence provided several issues remain unclarified. There is no evidence in regard to the actual employment of the nominee by the nominator, there is no evidence in regard to appropriate payslips or other employment details, and the draft employment contract was only signed at around the time that the hearing invitation was sent to the parties. It is also noted by the Tribunal that the total wages during the years above would seem to indicate that it is not possible that the partners in the business employed a professional primary produce inspector on the wages outlined.

30. The Tribunal has also considered that insufficient evidence was provided in regard to the nature of the duties and responsibilities of the nominee in actual and concrete terms, and nor was there any analysis or detail provided in regard to the actual duties and responsibilities of the other parties listed including the two owners and partners, one of which was an operations manager, and the farmhands noted but not listed. No information was provided that adequately explained the need for the role and to what extent the role may have been carried out by others noting in particular the purported ongoing necessity for adherence to legislative agricultural requirements.

31. The Tribunal also notes that no evidence was provided as to the actual need for this role other than generic protestations that the business may be expanding and therefore needed a primary produce inspector. The Tribunal further notes that the financial information provided does not in itself demonstrate this contention.

32. The Tribunal also notes that no other evidence was provided in regard to the priority placed by the business to employ an Australian citizen or permanent resident other than a reference to an advertisement being placed and that the nominee was the best applicant. The Tribunal finds that insufficient evidence was provided to demonstrate this.

33. The Tribunal has considered the above matters very closely and made a finding that there has been insufficient evidence provided that this position was, and would be, a genuine one, and that the nominator has not provided evidence of a genuine need for the nominee to be employed as a paid employee in the position of primary produce inspector under the nominator’s direct control.

34. On that basis the Tribunal finds that the applicants are not the subject of an approved nomination.

35. Therefore, cl 187.233 is not met.

36. The Tribunal notes that it made a finding in case number 2001794 on 19 July 2023 as detailed above that the nominator did not meet the requirements as outlined by the regulations. On that basis the Tribunal contacted the applicant in accordance with the obligations outlined in s.359A of the Act on 20 July 2023 noting that the application made by the nominator was refused by a delegate of the Minister and that the nominator sought a review of that decision but that it had been recently affirmed by the Tribunal.

37. On that basis, the applicant was informed that the application for the nominated position has not been approved. It was also stated that this information is relevant to the review because it is a requirement for the grant of the visa that that position specified in the visa application is the subject of an approved nomination. It was also stated that this means that the applicant did not satisfy the requirement for the grant of the visa and that therefore the Tribunal must affirm the decision that is under review. The applicant was invited to give comments or respond to the above information in writing and that this should be received by 3 August.

38. The Tribunal notes that no response was received by the Tribunal.

39. Therefore the Tribunal finds that the applicants are not the subject of an approved nomination and did not meet the requirements of cl 187.233.

40. 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.

41. The Tribunal also finds that as the primary applicant does not fulfil the criteria for the visa that therefore the secondary applicant also does not fulfil the criteria for the visa.

    DECISION

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

    Stephen Witts
    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

    (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 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.