CHEN (Migration)

[2018] AATA 4857

CHEN (Migration) [2018] AATA 4857 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms BIYUN CHEN

CASE NUMBER:  1619011

HOME AFFAIRS REFERENCE(S):           BCC2015/1877002

MEMBER:Peter Emmerton

DATE:15 October 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 15 October 2018 at 11:53am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – nomination not approved – no information provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 June 2015. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Contract Administrator ANZSCO 511111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. On 28 June 2015, the applicant’s sponsoring employer, Lsaso Pty Ltd applied for approval for a nomination for the position of Contract Administrator. Ms Biyun Chen is the nominee for the position. On 20 September 2016 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations. In a separate decision, the Department refused Ms Chen’s subclass 187 visa application because the nomination was not approved.

10. Lsaso Pty Ltd  and Ms Chen applied to the Tribunal to review the department’s decisions.

11. On 13 September 2018 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by Lsaso Pty Ltd for the position of Contract Administrator ANZSCO 511111.[1]

    [1] AAT Migration and Refugee Division Case No.1616620

12. On 13 September 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by Lsaso Pty Ltd.

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

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

15. The applicant was invited to provide a written response by 27 September 2018. The letter advised the applicant that if they 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.

16. At time to making this decision the applicant has not responded to the letter.

17. As the applicant has not provided the information within the prescribed period, and no extension has been sought or granted, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The Tribunal has proceeded to decision without taking any further steps to obtain the information, as it is evident the information cannot be provided.

    Nomination of a position

18. 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).

19. 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.

20. 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).

21. Therefore, cl.187.233 is not met.

22. 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

    The Tribunal affirms the decision not to grant the applicant’s 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.