Chen (Migration)

[2017] AATA 2325

Chen (Migration) [2017] AATA 2325 (23 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yanyan Chen
Mr Dongdong Chen

CASE NUMBER:  1712537

DIBP REFERENCE(S):  BCC2016/1282197

MEMBER:Karen Synon

DATE:23 October 2017

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 23 October 2017 at 3:29pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nomination refused – No review lodged – No approved nomination

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233, cl 187.311, r 5.19(4)(h)(i)

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 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 to the Department of Immigration for the visas on 25 March 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 of ‘Café or Restaurant Manager’.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 lodged by ‘Crazy Asian Pty Ltd’ was refused on 5 April 2017.

6. The applicants applied for review of the primary decision on 13 June 2017 and provided a copy of the department’s decision to the Tribunal.

7. On 27 September 2017 the applicants were invited to a hearing on 16 October 2017 to present evidence and arguments.  On 6 October 2017 a request for a postponement of the scheduled hearing was received with the applicant asserting she “was not advised on time for the hearing date” so was requesting an extension of time.  The applicant also stated that she has a regular appointment booked with her General Practitioner on 16 October and attached a Medical Certificate confirming this.

8. A check of the Tribunal’s correspondence confirms that the applicant was invited to the hearing as required by the Regulations and therefore was provided with the prescribed notice of the scheduled hearing however, on the basis of the medical evidence provided, the Tribunal granted the applicant’s request to postpone the hearing and it was rescheduled to 18 October 2017.

9. The applicants were represented in relation to the review and their registered migration agent attended the hearing.

10. The applicant appeared before the Tribunal on 18 October 2017 to give evidence and present arguments.  The second named applicant was invited but did not attend the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

11. Just prior to the hearing the applicants provided a number of documents relating to the business, Crazy Asian Pty Ltd and the occupation nominated in the visa application but these are not relevant to this review.

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 cl.187.233.

    Nomination of a position

14. 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)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination 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.

15. 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.

16. The Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to her.  As recorded in the primary decision, a copy of which she provided to the Tribunal, this position nomination was refused and therefore is no longer available to her.  The applicant agreed that the nomination was refused and asked why.  The Tribunal said it did not have this information and that she would need to contact the employer.

17. The applicant asked for an extension of time so she can go and help the business explaining that the employer is too busy to do the business and his family and she wants to go and give “a helping hand” so the employer has more time to look after the business.  The applicant has a 3 year old child in China who is currently cared for by his grandfather.  She has not seen her son for 2 years.  She urgently needs a job to provide financial support for her family.  Her partner works part time.  This is why she needs an extension so the employer can have some more time to get-together the evidence.  She has been in Australia for 10 years, firstly as a student, and she really likes living here and wants to bring her son here to be educated.  She wants her request to be approved so she can help the employer so he can focus more on the business.

18. The applicants’ representative submitted that the sponsor said the nomination was refused because the business size is now too small and because he could not provide updated financial reports.  He is too busy running the business and his family and his wife is the kitchen hand.  They have 2 little kids and do not have time to do the financial reports.   The sponsor wants the applicant to work part time so he can have spare time to do the accounting.  Although the business is not big now, it is in a busy street in Ballarat and they have 2 levels although the restaurant is only on the first level now because they do not have time to expand.  While the employer’s financial situation is not good now, they always have support from their family and the restaurant has good potential because Chinese tourism is booming and the employer has relationships with tourist operators but does not have time to do this now.  The employer has difficulty getting good employees in regional areas and while their business is struggling now, if they can get good employees to help them, they can do much better.  The applicant has a lot of experience and has studied in the area.  The employer may, in the future, put in another nomination.

19. The Tribunal explained that once the nomination has been refused and no review has been lodged, the Subclass 187 application on which that nomination relies can no longer be granted.  While much of the oral and written evidence (including financial statements of Crazy Asian Pty Ltd) would be relevant to a review of the nomination refusal it is not relevant to whether the applicant satisfies cl.187.233.  In the case the only relevant issue is whether the nomination made by Crazy Asian Pty Ltd was approved and not subsequently withdrawn or cased.  The representative said they understood this.  He said it is very hard to communicate with the sponsor who is in Ballarat as he is always busy and dos not pick up the phone.  That is why the applicant asked for an extension of time because they need more time to negotiate with this sponsor.

20. The Tribunal noted that, at this stage, it does not matter what the sponsor does, as the nomination has been refused and the sponsor did not apply for review of the refusal within the prescribed time period and therefore an extension of time to talk with the sponsor cannot make any difference to the outcome of this review.  Consequently there would be no benefit in the Tribunal delaying its decision making for any of the reasons advanced.  The applicants’ representative said the sponsor did not know how to apply to the AAT.

21. Invited to make any other comments or arguments after her representative’s submissions, the applicant declined to do so.

22. Based on the information before it in the primary decision and confirmed by the applicant’s oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

23. Therefore, cl.187.233 is not met.

24. 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.

25. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second named applicant does not satisfy the secondary criteria for the grant of the visa, in particular cl.187.311 which requires that an applicant must be a member of the family unit of a person who holds of a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    DECISION

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

    Karen Synon
    Member