CHEN (Migration)

[2023] AATA 2689

CHEN (Migration) [2023] AATA 2689 (27 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs FEI CHEN
Master ZHENGYANG CAI
Master YINGXI CAI
Master XUANHUI CAI
Mr SHIZHONG CAI

CASE NUMBER:  2005134

HOME AFFAIRS REFERENCE(S):          BCC 2018 / 1212963

MEMBER:Stephen Witts

DATE:27 July 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 27 July 2023 at 11:23am

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – café or restaurant manager – refused to attend the hearing – no evidence that there is a genuine need for a restaurant manager –no approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.223

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 14 March 2018. 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/nominee) is seeking the visa in the Direct Entry stream, to work in the nominated position of café or restaurant manager ANZSCO code 141111.

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 delegate was not satisfied that the applicant was the subject of an approved nomination.

6. The Tribunal notes that on 12 May 2023 the applicant and the nominator, Yiping Pty Ltd in this linked matter, was invited to attend a hearing to provide evidence and present arguments at a teleconference hearing on 22 June 2023. The Tribunal notes that the applicant did not respond to the hearing invitation. The Tribunal further notes that the applicant was contacted on her nominated number prior to the hearing and that she answered the call from the Tribunal associate stating that she can’t participate today and must work and terminated the call.

7. The Tribunal has considered this matter very carefully noting that as above the applicant was invited to attend the hearing on 22 June 2023 in accordance with the appropriate manner of invitation but did not provide a hearing response.

8. It is also noted that on 16 June 2023 the applicant’s representative, Mr Babu Chokkappa, emailed the Tribunal stating that “we are unable to get instructions, hence we withdraw our representation in the above matter. We have sent form MR6 to the client. Once it is signed by the client and return to us we will lodge it.”

9. The Tribunal notes that no further information was in fact received regarding this matter and that therefore the Tribunal decided that the matter should proceed to hearing in the appropriate manner.

10. As stated above the Tribunal has considered this very carefully noting that the applicant was contacted in the appropriate manner initially via her nominated representative and that the applicant did respond to the telephone call from the Tribunal officer to attend the hearing on the morning of 26 June 2023 but refused to attend the hearing. The Tribunal has considered whether the applicant was contacted in the appropriate manner and finds that the applicant was contacted appropriately and that she did respond to the telephone call from the Tribunal officer who was to connect the applicant to the teleconference hearing but refused to participate in the hearing.

11. On that basis the Tribunal proceeds to make a decision on the material before it.

12. The Tribunal further notes that the nominator, Yiping Pty Ltd, was contacted on 13 April 2023 in accordance with s359(2)  and was invited to provide information to the Tribunal for its consideration including such matters as ASIC information, tax returns and financial information, an organisational structure chart, job descriptions, work samples, current employment contracts for the nominee, training material, the location of the role, job advertisements, and other matters, requesting that such information should be provided to the Tribunal by 27 April 2023.

13. The Tribunal notes that a response was received from the nominator on 27 April 2023 stating that due to the business being very busy it would like to apply for three more months to get any documents prepared. The Tribunal notes that it provided a response on that date stating that as the nominator had already provided a response on 17 April 2023 it was not necessary for the Tribunal to grant additional time but that if the nominator would like to provide any further information it should do so as soon as possible.

14. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

16. 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.

17. 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.

18. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

19. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision for the nominator, Yiping Pty Ltd, where it was stated that on 13 March 2018 the nominator lodged a nomination application for the position of restaurant manager in favour of the nominee/applicant Ms Fei Chen. It was stated that the nomination application was defined as being an accommodation and food service business and commenced trading in November 2013. It was stated that the applicant employs five permanent resident or Australian citizen employees and no foreign employees and that the annual turnover for the immediate financial year was $550,000.

20. According to the delegate it considered whether there was a genuine need for the position contending that the business has not adequately outlined its operations and structure and that the business has referred to itself as its trading name 22^nd End Restaurant.

21. According to the delegate based on the material provided it made an assessment that the nominee was most likely working as a chef and that there is no evidence that there is a genuine need for a restaurant manager in a business of this nature which may be a food service but may not need a full-time café or restaurant manager.

22. The Tribunal notes that, as above, the nominator on 17 April 2023 provided it with copies of an ASIC extract and ABN information but no other material.

23. As above, the Tribunal notes that the applicant did not present to the hearing to provide any evidence.

24. The Tribunal has considered very carefully the material that is available noting that the nominator did not provide any evidence of the ongoing viability of the business or any evidence of the nature or extent of the applicant’s employment and has not addressed any of the issues raised by the delegate in its decision which the applicant did provide to the Tribunal.

25. On that basis the Tribunal made a finding that the nominator has not provided any evidence that there was a genuine need to employ a paid employee in the nominated occupation of café or restaurant manager under the nominator’s direct control.

26. The Tribunal notes that it made a finding in case number 1931379 subsequent to the hearing on 22 June 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 11 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.

27. 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 25 July 2023.

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

29. On that basis the Tribunal finds that the applicant is not the subject of an approved nomination.

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.

32. The Tribunal also finds that as the primary applicant did not meet the criteria for the grant of the visa that therefore the secondary applicants also did not meet the criteria for the grant of the visa.

    DECISION

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

    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.