Gu (Migration)

[2021] AATA 4113

Gu (Migration) [2021] AATA 4113 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao Gu

CASE NUMBER:  1905889

HOME AFFAIRS REFERENCE(S):          BCC2018/639389

MEMBER:Katie Malyon

DATE:23 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2021 at 1:37 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant – subject of an approved nomination – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 65, 353, 359C, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr Hao Gu, applied for the visa on 7 February 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  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.

3. In the present case, Mr Gu is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant ANZSCO 221111 with HQ Finance Pty Ltd (the Company).

   Background

4. The delegate refused to grant the visa on the basis Mr Gu did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by the Company was refused by the Department. A copy of the delegate’s decision was provided to the Tribunal.

5. On 7 January 2019, the Company sought review of the delegate’s refusal of its nomination application.   However, on 15 June 2021, the Tribunal decided that it had no jurisdiction to review refusal of the Company’s nomination because the Company was deregistered by the Australian Securities & Investments Commission (ASIC) on 28 September 2020. 

6. Subsequently, on 4 August 2021, the Tribunal wrote to Mr Gu pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 187 visa application. The Tribunal informed Mr Gu that information before the Tribunal indicates he declared in his Subclass 187 visa application he had been nominated by the Company. It informed Mr Gu that, on 15 June 2021, the Tribunal found it had no jurisdiction in relation to the Department’s decision to refuse the Company’s nomination in respect of the position of Accountant for Mr Gu because the Company had been deregistered by ASIC on 28 September 2020. Accordingly, there is currently no approved nomination by the Company in respect of him. As a result, the position to which Mr Gu’s Subclass 187 visa application relates cannot meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

7. The Tribunal’s letter was sent via Mr Gu’s representative at the email address provided in the review application form. It advised Mr Gu that, if his comments were not provided in writing by 18 August 2021 or if he has not made a request for an extension of time in which to provide the information by that date, the Tribunal may make a decision on the review without taking further steps to obtain their comments or response and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. No comments or response has been provided by Mr Gu or his representative within the prescribed period, and no extension of time had been requested. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Mr Gu 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow Mr Gu additional time in which to provide evidence to support his review application. In this regard, the Tribunal has considered: whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that Mr Gu meets the relevant requirements of cl.187.233(3) of Schedule 2 to the Regulations is likely to be forthcoming; whether he has already had a fair opportunity to provide the relevant information or documentation or, in the alternative, request an extension of time in which to do so; and, the significance of the information or documents to him. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

10. In the circumstances of this case, the Tribunal considers Ms Gu has had sufficient time in which to address the issue arising on review, that is, whether he is the subject of an approved nomination or, in the alternative, seek an extension of time in which to provide some evidence in support of such a claim. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain any information, comments or response from Mr Gu in accordance with s.359C of the Act.

11. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to Regulations.

    Nomination of a position

13. Clause 187.233 of Schedule 2 of the Regulation as applicable in this case is set out in full in the 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.

14. 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 (emphasis added);

    ·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.

15. The Company’s nomination application was refused by the Department on 19 December 2018 and it applied to the Tribunal for review of the Department’s decision to refuse that nomination. However, on 15 June 2021, the Tribunal found it had no jurisdiction in relation to the Department’s refusal of the Company’s nomination. Mr Gu has failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. Nor has he requested an extension of time in which to do so. In the circumstances, as the nomination application made by the Company for the position of Accountant to which Mr Gu’s Subclass 187 visa application relates has not been approved, it follows that he does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process: Mortimer J at [90]. Therefore, the Direct Entry stream requirements in cl.187.233 of Schedule 2 to the Regulations are not met.

16. Mr Gu 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 stream, the Temporary Residence Transition stream.  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

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

    Katie Malyon

    
    Member

    ATTACHMENT

    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.