Fang (Migration)

[2022] AATA 3282

Fang (Migration) [2022] AATA 3282 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Pei Yi Fang
Mr Kai Wing Luk
Ms Yan To Luk
Ms Yan Lam Luk

REPRESENTATIVE:  Ms Selena Pui Yan Yen (MARN: 0530785)

CASE NUMBER:  1909438

HOME AFFAIRS REFERENCE(S):          BCC2018/681452

MEMBER:De-Anne Kelly

DATE:16 August 2022.

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 August 2022 at 1:35pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Wholesaler – no approved nomination – compelling and compassionate circumstances – members of the family unit – request for Ministerial Intervention – pastoral service to a church – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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

2. The applicants applied for the visas on 9 February 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Wholesaler.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination by Vivid Solutions Pty Ltd was refused being the application referred to incl.187.233(1).

6. The applicant was represented in relation to the review by Ms Selena Pui Yan Yen.

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

   Tribunal invitation to provide information

8. On 13 July 2022 the Tribunal invited the applicant under s.359A of the Migration Act 1958 (the Act) to comment on the information that the employer nomination refusal decision has been affirmed by the Tribunal.

9. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 27 July 2022, or within the period allowed for this purpose, or it would lose any entitlement it might otherwise have under the Act to appear before the Tribunal.  The invitation was sent via the email address provided on the review application form.

10. However, the applicant did not provide its requested information, within the prescribed period and did not request an extension of time.

11. In these circumstances, s.359C of the Act 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.

12. The applicant through their agent responded on 28 July 2022 which was outside the prescribed period of time.

13. On 14 July 2022 the Tribunal invited the applicant to a hearing scheduled for 4 August 2022 however this had to be cancelled when the applicant lost the right to a hearing as discussed above.

14. On 2 August 2022, the agent wrote to the Tribunal requesting a re-instatement of the hearing which was scheduled for 4 August 2022 because she had contracted COVID-19 and was still in 7-day isolation and had just seen the correspondence. The agent had understood that the hearing was a separate matter to the invitation to comment and therefore they would have the opportunity to provide further information 7 days before the hearing and argue their case for Ministerial Intervention in the hearing. Unfortunately, the Tribunal does not have the power to re-instate the hearing and this was advised to the agent

15. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant satisfies cl187.233(3) which provides as follows.

    (3) The Minister has approved the nomination.

    Nomination of a position

17. 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.

18. 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 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.

19. The applicant on 28 July 2022, signed a Statutory Declaration in which she acknowledged that without an approved employer nomination her visa application could not be approved however she requested Ministerial Intervention and gave an over view of her family’s circumstances.

20. They came to Australia in 2014 on a religious worker visa with her husband as the primary applicant however this visa subclass was closed to permanent residency some two months before they could apply and the visa applicant subsequently applied through the nominator Vivid Solutions Pty Ltd. The visa applicant states that the nominator will not be appealing the nomination refusal and they do not have the energy and financial support to appeal the visa refusal review. They believe there are compelling and compassionate circumstances that support a Ministerial Intervention request from the Tribunal.

21. Documents including the following were provided.

    a.Clinical Pastoral Education certificate for the nominee Bethel Bible Seminary 2012.

    b.Bachelor of Christian Counselling & Christian Education for the nominee.

    c.A variety of other qualifications for the nominee.

    d.Reference letter from employers for the nominee.

    e.Media articles on Hong Kong security law effect on Christian Churches.

    f.Submission agent 20 August 2020 on the merits of the employer nomination review.

    g.Work samples for the nominee.

    h.Statutory Declaration from the nominee 28 July 2022.

    i.Birth Certificate for female child born in Australia.

    j.“Luk’s Family – About us”.

    k.Letters of support from local Doctor, members of the parish of Cantonese Ministry in the Brisbane alliance Church. (BCAC).

    l.Picture drawn by children “Pls Don’t leave us” from schoolchildren.

    Letters of support from the following.

    m.The Christian and Missionary Alliance of Australia Inc.

    n.Brisbane Chinese Alliance Church (BCAC)- Elders Board.

    o.Fisher of Men-Homeless and local community Christian

    Charity.

    p.Parkland Christian College-Primary Principle.

    q.Parkland Christian College teacher-Mrs. Davis.

    r.BCAC Joshua fellowship-young family group.

    s.BCAC Canaan fellowship-new immigration group.

    t.BCAC Shine fellowship-working youth group.

    u.BCAC Just fellowship-oversea student group.

    v.Arck Health-Director Andy (business with Joey)

    w.Letter of support from local Federal Member of Parliament 28 July 2022.

22. The Tribunal finds that since it has affirmed the decision to refuse the employer nomination there is no approved employer nomination to satisfy cl.187.233(3).

23. Therefore cl.187.233(3) is not met.

24. Therefore, cl 187.233 is not met.

25. 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.

26. Mr Kai Wing Luk, Ms Yan To Luk and Ms Yan Lam Luk were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicant on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

27. The secondary applicants made a combined application with the primary applicant and applied as the spouse and children and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant a Regional Employer Nomination (Permanent) (Class RN). Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

28. The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant them a subclass 187 visa.

    Request for Ministerial Intervention.

29. The visa applicant states that her family have been working in Australia for over 8 years and came here on Hong Kong passports. The repeated visa refusals have been stressful for them and their two daughters who face the prospect of leaving Australia the only country they have ever known. They speak English and know very little Chinese. They have a rich educational, community and church life in Australia. The parents are concerned about the mental health impact this would have on their daughters and have provided a letter from a GP with a special interest in mental health who states this re-location would place a “horrible and unnecessary burden” on the children.

30. The visa applicants’ husband is a Minister in the local Brisbane Chinese Alliance Church having been ordained in February 2022 because of his pastoral service to the church and its members. The Visa applicant Ms Pei Yi Fang (Joey) also spends time counselling and serving the community and they have helped over 1000 people in critical moments in their lives. They state that if they are unable to stay in Australia the chronic and urgent needs of neighbours and church members will be ignored.

31. They are concerned about returning to Hong Kong because of the passing of a wide-ranging national security law which will curtail religious freedom and they will be exposed to religious persecution and risk of censorship and discrimination. They state that numerous religious leaders have been imprisoned for vague offences and others subject to harassment and intimidation, unfair trials and arbitrary detention. The visa applicants’ husband has had many of his sermons recorded online and these may be used against him by the government in Hong Kong.

32. They have been heartened by the Australian governments desire to protect Hong Kong people and despite the challenges in Australia they have sought to care for the people in their church and community.

33. They believe they cannot return to Hong Kong because it is too dangerous due to their religious background and Hong Kong’s National Security Law. They have stable full-time jobs and contribute financially and socially to the Australian community.

34. The Tribunal notes the Ministerial Intervention Guidelines list the following unique and exceptional circumstances under which a case may be referred as follows.

    1)strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

    2)compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

    3)exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

    4)circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

    5)the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control.

    6)a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country.

    7)the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.

35. The Tribunal will consider whether any of these circumstances are enlivened in this case.

36. I have noted that the applicant has many letters of support regarding the family’s service to their church and community and have no doubt that they are of service and comfort to both and would be solely missed however this does not constitute specific serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit so it appears (1) is not satisfied. I have considered the letter from the GP regarding the difficulty of locating Cantonese speaking pastors for their church so as to administer to the heart felt spiritual needs of their congregation but again this does not appear to favour the criteria above.

37. The same GP states that returning the children would a “horrible and unnecessary burden” however he does not reference specific age and/or health and/or psychological states of the children or the visa applicant and her husband that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to them so it appears that criteria (2) is not satisfied.

38. Criteria (3) is not satisfied since while the Reverend and his wife are undoubtedly significant contributors to their church and broader community so are many other Ministers of religion and they would not be seen as providing an exceptional benefit to Australia such as scientific breakthroughs or other significant outcomes.

39. Criteria (4) is not met as it is an anticipated outcome that if an employer nomination is not approved then it follows that the visa application is not approved.

40. The Department has not determined that the applicant cannot be returned to Hong Kong and therefore criteria (5) is not satisfied.

41. The applicant has claimed that they may be subject to harassment and /or detention because of their religious beliefs although there is scant evidence of this. There is no doubt life in Hong Kong is more difficult under the new laws and it is understandable that its citizens do not want to return to live under the current regime however if they believe they face persecution it is open to them to apply for a protection visa. They are not precluded from applying for a protection visa and as such it appears that criteria (6) and (7) are not satisfied.

42. While the Tribunal recognises the applicant and her families strong desire to remain in Australia, the service they provide to their church and community and their concern over living under the current Hong Kong regime it does not seem that these would satisfy unique or exceptional circumstances such that a request for Ministerial Intervention should be made by the Tribunal. Having considered all of the information available to it, the Tribunal declines the applicant’s request to recommend the matter to the Minister for intervention. However, it remains open to the applicant to make such a request if she believes that she has sufficient grounds to warrant Ministerial intervention.

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

    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

    (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.