Chen (Migration)

[2019] AATA 6156

Chen (Migration) [2019] AATA 6156 (15 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Minqi Chen
Mr Junjie Mao
Miss Mattie Xiaorou Mao

CASE NUMBER:  1800698

HOME AFFAIRS REFERENCE(S):           BCC2016/2774305

MEMBER:Peter Emmerton

DATE:15 October 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 15 October 2019 at 2:38pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – sponsoring employer’s position nomination refused – employer’s company now in liquidation – refusal affirmed on review – request for referral for ministerial intervention not acceded to – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359A

Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (4)(h)(ii), Schedule 2, cl 187.233(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 Home Affairs 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 August 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 Accountant (General), ANZSCO 221111.

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 nomination had not been approved.

6. The applicants appeared before the Tribunal, via video from Perth, on 15 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Junjie Mao.

7. The hearing was conducted with the assistance of an interpreter of the Cantonese and English languages.

8. The applicants were represented in relation to the review by their registered migration agent prior to the hearing but the representative was not present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination has been approved.

11. On 22 August 2016, the applicant’s sponsoring employer, Capsola Pty Ltd applied for approval for a nomination for the position of Accountant (General), ANZSCO 221111. Ms Minqi Chen is the nominee for the position. On 24 November 2017 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(ii)(D) or r.5.19(4)(d)(i) of the Regulations. In a separate decision, the Department refused Ms Minqi Chen’s subclass 187 visa application because Capsola Pty Ltd’s nomination was not approved.

12. Capsola Pty Ltd and Ms Minqi Chen applied to the Tribunal to review the Department’s decisions.

13. On 10 September 2019 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by Capsola Pty Ltd for the position of Accountant (General), (ANZSCO 221111).[1]

    [1] AAT Migration and Refugee Division Case No. 1731646

14. On 11 September 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised her that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by Capsola Pty Ltd.

15. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, she cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

16. The applicant was advised that if she cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing her the visa.

17. The applicant was invited to provide a written response by 25 September 2019. The letter advised the applicant that if she did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

18. The applicant responded to the letter on 11 September 2019. At that time she again informed and provided evidence to the Tribunal that her mother was seriously ill and that she was in China assisting her. She also stated that she would be back in Australia on 9 October 2019. She had previously requested a delay to the hearing which had been scheduled jointly with the hearing for Capsola Pty Ltd on 4 September 2019.

    Nomination of a position

19. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

20. 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.

21. The applicant provided oral evidence to the Tribunal that she had worked at Capsola Pty Ltd from 11 July until May 2017 and then taken extended leave whilst starting her family. She then stated that she was working part-time from home for approximately 15 hours per week at a rate of $23-68 per hour between January 2018 and January 2019 and had not recommenced since the birth of her second child earlier this year.

22. The Tribunal became aware that the Federal Court of Australia, (WAD279/2019), had placed the nominating entity into Liquidation on 20 August 2019. This discovery occurred following enquiries made on the ASIC website by the Tribunal. The Court appointed Liquidator, Mr Matthew Donnelly, in addition to declining an invitation to appear before the Tribunal, stated in writing to the Tribunal, on 9 September 2019, ’…. as the Company is in Liquidation, the Director no longer controls the Company and the Company also is not capable of fulfilling a sponsorship for an employee.’

23. The Tribunal stated during the hearing to both Ms Chen and Mr Mao that the requirements of 187.233(3) stipulated that the Minister must have approved the nomination and that without an approved nomination associated with the applicant’s visa application it is not possible to approve the application. The Tribunal also stated that there was not a valid nomination associated with the applicant’s visa application and that Capsola Pty Ltd’s nomination had been refused by both the Minister’s delegate and subsequently the Tribunal.

24. Ms Chen agreed that the business had been placed in liquidation and that this had been conveyed to her on 9 September 2019. She had subsequently had a conversation with the Director following her return from China on 9 October 2019. Ms Chen and her children had been visiting her seriously ill mother between 11 August 2019 and 9 October 2019.

25. Ms Chen did not provide evidence demonstrating that an approved valid nomination by Capsola Pty Ltd was currently in existence.

26. Ms Chen requested that the Tribunal refer this case to the Minister for his attention, under Section 351 of the Migration Act 1958. The Tribunal has decided that it will not take that course of action. It has formed a view that an essential criterion cannot be fulfilled as there is not a valid nomination. The legislation and regulations surrounding this issue are unambiguous; a visa cannot be issued unless there is an approved nominated position. It is clear that is not the situation in this case. It again notes that the nominating entity has been placed in liquidation.

27. The Tribunal also notes that there may be alternate visa routes potentially open to the applicants should they wish to pursue them. The Tribunal suggested to Ms Chen that she speak to her representative regarding any possible options.

28. The Tribunal notes that the applicant may make a request directly to the Minister and this was conveyed to the applicant at the hearing.

29. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

30. Therefore, cl.187.233 is not met.

31. 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.

    DECISION

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

    Peter Emmerton
    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.