Gui (Migration)

[2020] AATA 3074

Gui (Migration) [2020] AATA 3074 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shijun Gui

CASE NUMBER:  1815771

HOME AFFAIRS REFERENCE(S):          BCC2016/2650185

MEMBER:De-Anne Kelly

DATE:20 July 2020

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 20 July 2020 at 1:27pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related nomination application refused – no jurisdiction to review refusal as company deregistered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)
Corporations Act 2001 (Cth), s 601AD(1)

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 11 August 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 office manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because on 4 April 2018 the nomination application for Knarston Enterprises Pty Ltd was refused being the application referred to in cl.187.233(1).

6. The applicant was originally represented by her registered migration agent Karl Young however this agent’s registration was later withdrawn.

7. The applicant was invited to a hearing on 24 June 2020 through her previously registered migration agent who failed to forward the invitation to the applicant. The Tribunal was unaware that the invitation had not been provided to the applicant and contacted the applicant in China by telephone. During that telephone conversation the applicant was able to give her personal email address which the agent had not provided in the review application form. The Tribunal considered this brief hearing for which the applicant was unprepared was not a fair and just opportunity for her to present her case. As such the Tribunal invited the applicant to a further hearing on 21 July 2020 by emailing her directly. The applicant responded in writing advising that she would not attend the hearing and stating that the Tribunal could make a decision on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

12. After the delegate of the Minister refused the employer nomination, the applicant lodged a review application of the refusal of her visa application with the Tribunal on 30 May 2018

13. The applicant included with the review application the Notification of refusal of application for an Employer Nomination and the Notice of Decision detailing the reason for the refusal of the visa application being the refusal of the employer nomination application.

14. On 12 February 2020, the Tribunal found that it had no jurisdiction to review the refusal of the employer nomination since Knarston Enterprises Pty Ltd was deregistered by the Australian Securities and Investments Commission (ASIC) on the 4 September 2019. Generally speaking, a company that is deregistered ceases to exist as a legal entity: s601AD(1) of the Corporation Act 2001 and there is no longer a person who has standing to apply for, or continue with, an application for review. As such the employer nomination is not approved.

15. During the brief telephone hearing with the applicant in China, the Tribunal advised her that the employer nomination was not approved and that her agent was no longer registered. On the 26 June 2020, the Tribunal sent an email directly to the applicant advising her that the agent was no longer registered and advising that she may wish to appoint a new representative and included a form to appoint a new representative. She responded by email  that she had telephoned the lapsed/sanctioned agent after the brief hearing on the 24 June 2020 and he then emailed her a copy of the hearing invitation for 20 June 2020.

16. It is evident that the lapsed/ sanctioned agent received the hearing invitation and failed in his duty to forward it to the applicant. The applicant seemed unsure as to what further action she should take and emailed the Tribunal asking for advice. The Tribunal considered it fair and reasonable to invite her to a further hearing on the 21 July 2020. On 10 July 2020, the Tribunal received a response to the further hearing invitation in which the applicant indicated in writing that she would not be attending the hearing and that the Tribunal could make a decision on the papers without taking further steps to allow her to appear. The Tribunal believes it is reasonable to move to making a decision on this matter under s.360(2)(b) of the Migration Act.

17. The Tribunal considers that there is no approved employer nomination application and therefore cl.187.223(3) is not met. As such the visa applicant does not meet cl.187.233(3).

18. Therefore, cl.187.233 is not met.

19. 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

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

    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.