Chen (Migration)

[2019] AATA 2167

Chen (Migration) [2019] AATA 2167 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wei Chen
Mr Yang Liu

CASE NUMBER:  1828621

HOME AFFAIRS REFERENCE(S):           BCC2017/2446834

MEMBER:Katie Malyon

DATE:16 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 April 2019 at 2:53 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Chef – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 187.223, 187.233; r 1.13

CASES

Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 10 July 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 (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 - Chinese national, Ms Wei Chen - is seeking the visa in Direct Entry stream, to work in the nominated position of Chef (ANZSCO code 351311).  The applicants were represented in relation to the review by their registered migration agent.

5. The delegate refused to grant the visas on the basis that Ms Chen did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination application made by her prospective employer was refused by the Department.

   Background

6. Ms Chen was nominated to fill the position of Chef by her prospective employer, Jamie Oliver Restaurant Group (Australia) Pty Ltd (the Company).  The Company’s nomination was refused by the Department on 7 August 2018.  As a result, the Department refused Ms Chen’s Subclass 187 visa application.  The Company did not seek review of the delegate’s refusal of its nomination application. 

7. The matter was constituted to the Member on 28 March 2019. On 29 March 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 187 visa application. The Tribunal informed the applicants that there is currently no approved nomination by the Company in respect of Ms Chen. As a result, the position to which her Subclass 187 visa application relates cannot not meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. The Tribunal’s letter to the applicants was sent to their representative who lodged their review application with the Tribunal.  The applicants were requested to provide any comments or response to the information in the Tribunal’s letter on or before 12 April 2019.  No response was received from the applicants or their representative.

9. As the applicants have not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the applicants are is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. Clause 187.233 of Schedule 2 to the Regulations, 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.

12. 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.

13. The Company’s nomination application was refused by the Department and no review of the refusal was sought. The applicants have failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. In the circumstances, as the nomination application made by the Company for the position of Chef to which Ms Chen’s Subclass 187 visa application relates has not been approved, it follows that she does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

14. As Ms Chen does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second named applicant, her partner Mr Yang Liu, cannot satisfy the secondary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that Mr Liu meets the primary requirements for grant of the visa. 

15. Ms Chen 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 stream.  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

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2

    ..

    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.

    oOOo