Gao (Migration)

[2022] AATA 804

Gao (Migration) [2022] AATA 804 (30 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Quan Gao
Ms Wei-Yu Chen
Mr Xing Gao

CASE NUMBER:  1826435

HOME AFFAIRS REFERENCE(S):          BCC2016/3957225

MEMBER:De-Anne Kelly

DATE:30 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 30 March 2022 at 1:08pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa - Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – related nomination application refused and no jurisdiction for tribunal to review – nominating company deregistered – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), (3), 187.311

CASE
Singh v MIBP [2017] FCAFC 105

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 24 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 (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 Cook.

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 Meayo Pty Ltd was refused being the application referred to in cl 187.233(1).

6. The applicants appeared before the Tribunal on 15 March 2022 to give evidence and present arguments. The services of a Mandarin to English interpreter were utilised. During the hearing the Tribunal asked the applicant if the interpretation was clear and understood and this was confirmed.

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 satisfies cl.187.233(3)

   (3)       The Minister has approved the nomination.

   Nomination of a position

9. 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.

10. 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.

11. The Tribunal advised that applicant under s 359AA of the Act that following the refusal of the employer nomination the employer lodged an application for review with the Tribunal on 13 August 2018 however on 18 June 2021 the Tribunal found it did not have jurisdiction to hear the case as the nominating entity Meayo Pty Ltd had been deregistered and therefore ceased to exist and there was no longer a valid application for review.

12. The Tribunal advised the applicant that it did not have an approved employer nomination and that it may not satisfy cl. 187.233(3) and this may be part or all of the reason to affirm the decision under review. It may also form the basis for affirming the secondary applicant’s refusal of their visa applications.

13. It was noted that the applicant had submitted photos and other documents to evidence his work as a Cook.

14. The Tribunal explained to the applicant that the Courts in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (14 July 2017) by Judges Jagot, Bromberg and Mortimer JJ found that the application is a “one-off” and one cannot attach a new employer nomination to this visa application. The applicant asked for advice, but the Tribunal advised that it cannot give migration advice and the applicant needs to seek professional advice but without an approved employer nomination by Meayo Pty Ltd, the case will inevitably fail.

15. The Tribunal gave the applicant 14 days to make a written response and on 29 March the applicant wrote stating that he and his employer had worked very hard, and he would like a chance to justify the time it has taken to have the case heard. While the Tribunal acknowledges these points made by the applicant it does not go to the need to meet the legislative requirements.

16. There is no approved employer nomination to satisfy cl.187.233(3).

17. Therefore, cl 187.233(3) and cl.187.233 are not met.

18. 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.

19. Ms Wei-Yu Chen and Mr Xing Gao were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa 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 applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants 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.

20. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child 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) subclass 187 visa. 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.

21. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicants a subclass 187 visa.

    DECISION

22. 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

    (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.