Chen (Migration)

[2020] AATA 3239

Chen (Migration) [2020] AATA 3239 (16 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kang Chen

CASE NUMBER:  1811874

HOME AFFAIRS REFERENCE(S):          BCC2017/2333667

MEMBER:De-Anne Kelly

DATE:16 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 16 June 2020 at 9:24am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Sales and Marketing Manager– no approved nomination– not the subject of an approved nomination– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

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 Home Affairs 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 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Sales and Marketing Manager ANZSCO

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because a delegate of the Minister on 19 February 2018 refused the nomination lodged by My Healthy Garden Pty Ltd being the application referred to in paragraph 187.233(1).

6. The applicant appeared before the Tribunal on 8 April 2020 to give evidence and present arguments. This was a dual hearing of the employer nomination refusal review and the visa application refusal review and was conducted by telephone. The Tribunal determined that the matters to be canvassed in the hearing were suitable for a telephone hearing and advised that it would consider any submission the applicant may make about why the hearing may not be suitable to proceed by telephone. The Agent responded on 20 March 2020 that she would prefer a video conference however she did not wish to delay the hearing whereby a hearing by telephone would be accepted. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by its registered migration agent, Ms Sharon Harris MARN: 9502060 of Sharon Harris Migration. The agent attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

10. Clause 187.233 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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.

12. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal affirmed the decision on 27 May 2020 to refuse the nomination on the basis the nominator had failed to satisfy r.5.19(4) of the Regulations.

13. On 1 June 2020 under s.359A of the Act, the Tribunal sent to Mr Kang Chen an invitation to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in the visa application is not the subject of an approved nomination. This would mean they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. The applicant was advised a response should be received by 15 June 2020 or an extension of time could be requested but the request must be made by 15 June 2020.

14. To date no response has been received from the applicant and no request for an extension of time has been made to the Tribunal. The Tribunal believes it is reasonable to move to making a decision on this matter.

15. Since the Tribunal has affirmed the employer nomination decision under review there is no approved nomination to satisfy cl.187.233(3) and the visa applicant therefore does not meet cl.187.233(3).

16. Therefore, cl.187.233 is not met.

17. 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

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

    De-Anne Kelly
    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.