Fan (Migration)

[2018] AATA 4104

Fan (Migration) [2018] AATA 4104 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zijing Fan

CASE NUMBER:  1705405

HOME AFFAIRS REFERENCE(S):           BCC2016/999323

MEMBER:Kate Millar

DATE:30 August 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 30 August 2018 at 12:25pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – not subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 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 Immigration and Border Protection 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 9 March 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Quality Assurance Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. The applicant’s nominator is Australian Pure Fruits Pty Ltd. It applied for a review of the decision to refuse to approve the nomination.  On 23 July 2018, the Tribunal affirmed the decision to refuse the nomination.

7. Following this decision, the Tribunal wrote to the application under s.359A of the Act to advise that it has adverse information that would result on it affirming the decision under review.  The applicant provided a response stating she was disappointed with the decision.  As she had provided a response, a hearing was listed on 30 August 2018 by telephone.  The applicant was advised of the hearing on 8 August 2018.

8. The applicant sought an adjournment of the hearing on the basis that she was undertaking a placement for a Master of Teaching.  This was declined as the merit of the application did not warrant further delay and as the hearing was listed by telephone for a short period and would involve a minimal disruption to her placement.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the subject of an approved nomination.

    Nomination of a position

11. Clause 187.233 as it applies in this case is set out in an attachment to this decision. Essentially, it requires that that the position to which the application relates is 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.  

12. In addition, this criterion also requires, among other things that the nomination has been approved and has not been subsequently withdrawn (cl.187.233(3)).  The decision not to approve the nomination was affirmed by this Tribunal on 23 July 2018, and the nomination has not been approved. 

13. Therefore, cl.187.233 is not met.

14. The visa applicant told the Tribunal that she has waited a long time for the visa and that she is disappointed with the decision.  She also said that she understood her application for the visa could not be successful if the nomination was not approved.  She said that she did not think the refusal was a big deal, and that the outcome would be different at the Tribunal.  The Tribunal appreciates that she had thought the nomination would be approved on review and that her visa application would be successful, however unfortunately this is not the case and the decision under review must be affirmed. 

    DECISION

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

    Kate Millar
    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.