Chen (Migration)

[2023] AATA 2109

Chen (Migration) [2023] AATA 2109 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu Chen

CASE NUMBER:  1923835

HOME AFFAIRS REFERENCE(S):          BCC2018/1268990

MEMBER:Sean Baker

DATE:13 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2023 at 11:43am

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Motor Mechanic – applicant failed to provide the requested information –no approved nomination –  tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.13, Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic (General) - 321211.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because there was no approved nomination in relation to the visa application. The applicant provided a copy of the delegate’s decision to the Tribunal.

6. On 18 May 2023 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information was that the nomination in relation to the application had not been approved and the refusal of the nomination had been affirmed by the Tribunal, as set out in further detail below. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 1 June 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 23 May 2023 the Tribunal had invited the applicant to appear before the Tribunal to give evidence and present arguments at a hearing on 14 June 2023.

8. By letter dated 5 June 2023, the Tribunal informed the applicant that, because of his non-response, the hearing of 14 June 2023 had been cancelled as he was not entitled to appear before the Tribunal. The letter invited the applicant to provide any further information or evidence addressing the issues under consideration, as indicated in the earlier invitation to provide information, or to substantiate his claims, by 9 June 2023 and that after that date the Tribunal would proceed to make a decision. The applicant did not respond to that letter.

9. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination in relation to the visa application.

    Nomination of a position

12. 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.

13. 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.

14. In the present case, the nomination referred to above was not approved. The application of the applicant was refused by the Department on this basis.

15. The applicant’s nominator appealed the refusal of the nomination to the Tribunal. On 25 November 2022, the nomination lodged by Yan Capital Motors Pty Ltd, being the nomination referred to in paragraph 187.233, was affirmed by the Tribunal.

16. This information was put to the applicant for his comment or response in the 359A letter referred to above. The relevance and consequence were explained to the applicant.

17. The applicant did not respond. Nor did he provide further information when invited to do so. The Tribunal has therefore made the decision on the basis of the information before it.

18. The position to which the application relates is not the subject of an approved nomination. The nomination was refused by the Department and this decision was affirmed by the Tribunal. There is therefore no approved nomination in relation to the application.

19. The position must be the one that was the subject of the declaration made as part of the current visa application. It is clear that this requirement cannot be satisfied by a later nomination of a position. It is also clear that the application was in relation to the direct entry stream, and the applicant is unable to satisfy any other stream or subclass because the applicant does not meet key criteria for these streams.

20. The applicant therefore does not cl 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

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

    Sean Baker
    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.