Chen (Migration)

[2020] AATA 1985

Chen (Migration) [2020] AATA 1985 (26 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yu-Chien Chen
Mr Chien-Lin Chen

CASE NUMBER:  1809054

HOME AFFAIRS REFERENCE(S):          BCC2016/3751283

MEMBER:Jennifer Cripps Watts

DATE:26 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 26 May 2020 at 12:46pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – no jurisdiction to review refusal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65

Migration Regulations 1994 (Cth), 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 November 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 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) is seeking the visa in Direct Entry stream, to work in the nominated position of Sales and marketing Manager Sales and Marketing Manager, Australian and New Zealand Standard Classification of Occupations code 131112.

5. The delegate refused to grant the visas on 26 March 2018 because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant did not have an approved nomination.

6. The applicants attended the Tribunal hearing by on 26 May 2020 to give evidence and present arguments.  The applicant gave oral evidence.  The secondary applicant elected not to give oral evidence.

7. The applicant and Tribunal were assisted by an accredited interpreter in the English and Mandarin languages.  It was confirmed with the applicant that she understood the interpreter clearly.  The applicant provided answers in both Mandarin and English during the hearing.  The applicant was invited to indicate if she needed anything repeated, explained or rephrased at any time throughout the hearing because it is very important that we were both confident that we could hear and understand each other.  There was occasional clarification sought, which is usual in migration hearings.  The Tribunal is satisfied everyone was heard and understood throughout the hearing.

8. It was explained to the applicant that the Tribunal, Federal Courts, and some other courts and tribunals, are currently conducting hearings by phone where it is appropriate due to the COVID-19 situation, and that her matter had been identified as suitable.       

9. The applicants were represented in relation to the review by their registered migration agent, Mr Nicholas Taft.

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 the same determinative issue on which the visa was refused; that is, in summary, is there an approved nomination related 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 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 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.

14. At the Tribunal hearing, the applicant was reminded that a letter containing information adverse to her case was sent to her on 5 May 2020, requiring a written response by 21 May 2020, and it was confirmed that the Tribunal received a response; an email detailing the applicant’s current work situation and, essentially, the reasons why she believes she should be granted the visa, together with attached documents relating to her employment.  The adverse information that was particularised is, essentially, that there is no approved nomination relating to the applicant’s Subclass 187 visa application and, as this is a mandatory requirement, without the relevant approved nomination the applicant cannot meet the primary criteria.  The applicant confirmed she had received and understood the letter.

15. For clarity, the contents of the Tribunal’s 21 May 2020 letter were again put to the applicant, at the hearing.  The status of the nomination relating to the applicant’s Subclass 187 visa application, by Seawalker@Green Island Pty Ltd, was discussed with the applicant when she was giving her oral evidence.  In summary, the nomination was refused on 20 February 2018 and, on 7 April 2020 the Tribunal (differently constituted) found it had no jurisdiction to review the decision refused the nomination.  

16. The position to which the visa application relates must be the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made.  The Tribunal is satisfied that the applicant confirmed, at the hearing, that she understands that without the relevant approved nomination for the position by Seawalker@Green Island Pty Ltd she cannot meet the primary criteria for the grant of the Subclass 187 visa that is the subject of this review.

17. Although not material to the issue on the review, the Tribunal is satisfied that the applicant has been employed full-time by another company, DFS, since June 2018 in a marketing position and that she believes she could contribute to rebuilding the economy in the wake of the COVID-19 pandemic by continuing to work in that capacity.  It is acknowledged that the applicant informed the Tribunal that around the time of her visa application a number of other employees also applied for visas and that their visas were granted and that hers was the only one that was not granted.

18. Before the hearing was concluded, the secondary applicant was asked if he wished to give evidence and confirmed that he did not wish to say anything.  The applicant was asked if she had anything further she wished to say and said it would be difficult to find a flight to Taiwan that would enable them to depart Australia in 35 days if the visa is refused.  The applicant was informed that the Tribunal and Department are independent of each other and that the Tribunal cannot give migration advice, and that once the Tribunal’s decision is notified that the best person to speak to for advice about the applicants’ future visa status would be Mr Taft or the Department.

19. On the evidence, and for the reasons given, cl.187.233 is not met.

20. 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.

    Secondary applicant

21. As the Tribunal has affirmed the decision to refuse the applicant’s visa, the decision to refuse the secondary applicant’s visa must also be affirmed.

    DECISION

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

    Jennifer Cripps Watts
    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.