Dao (Migration)

[2019] AATA 2278

Dao (Migration) [2019] AATA 2278 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hoang Nam Dao

CASE NUMBER:  1907375

HOME AFFAIRS REFERENCE(S):           BCC2018/2881726

MEMBER:Karen McNamara

DATE:3 June 2019

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 03 June 2019 at 3:10pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Employer Sponsored Migration Scheme – Direct Entry stream – English Language Proficiency – no evidence of information in support – applicant has not provided a response – did not appear – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), Schedule 2 cls 187.232, 187.233, rr 1.13A, 1.13B, 1.15C

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 1 August 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 (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, Mr Hoang Nam Dao (the applicant) is seeking the visa in Direct Entry stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.232 of Schedule 2 to the Regulations because the applicant did not provide any evidence or information to support the applicant had competent English or was a person in a class of persons specified by the Minister in a legislative instrument. The delegate noted that the applicant had indicated on the application form of 1 August 2018, that he had not undertaken an English test within the last 36 months.

6. The applicant applied to the Tribunal on 27 March 2019 for review of the delegate’s decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.187.232. and cl.187.233.

   English language proficiency

9. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument IMMI 15/005.

10. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent English if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score, or

    ·holds a specified passport.

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

11. The delegate found that at the time of application the applicant had indicated on the application form that he had not undertaken an English test within the last 36 months. No evidence or information in support of the application had been provided by the applicant.

    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 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. On 8 April 2019 the Tribunal wrote to Mr Dao (dispatched by email to the authorised recipient) advising that information before the Tribunal suggested that Mr Dao’s application was not subject to an approved nomination. The letter invited the applicant to provide evidence of an approved nomination or a pending application for review of a decision to refuse the nomination. The applicant was provided until 22 April 2019 to provide this information.

15. The review applicant has not provided a response within the prescribed period and no extension has been granted.

16. On 9 May 2019, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient) advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 3 June 2019 at 10.00 am. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. No response to the hearing invitation was received.

17. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal to indicate that the applicant contacted the Tribunal to advise that he would not be attending the scheduled hearing.

18. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

19. The Tribunal has had regard to the information presently before it. The applicant did not provide evidence that will indicate the applicant at the time of application had competent English or was a person in a class of persons specified by the Minister in legislative instrument.

20. The Tribunal therefore finds the applicant does not meet cl.187.232.

21. Furthermore there is no evidence before the Tribunal to support that the applicant’s application is subject to a nomination that has been approved and as not been subsequently withdrawn. 

22. As such, the Tribunal finds that the applicant does not satisfy cl 187.233(3).

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.

    DECISION

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

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.