Ha (Migration)

[2022] AATA 1208

Ha (Migration) [2022] AATA 1208 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Tu Oanh Ha
Mr Van My Le
Miss Thao Nhi Pham

REPRESENTATIVE:  Mrs Betty Zhang (MARN: 0964385)

CASE NUMBER:  1905345

HOME AFFAIRS REFERENCE(S):          BCC2016/3595753

MEMBER:De-Anne Kelly

DATE:17 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 17 March 2022 at 9:06am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 28 October 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 Human Resource Manager.

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 lodged by The Trustee for Hastings Trust was refused by the delegate being the application referred to in cl.187.233(1).

6. The applicants appeared before the Tribunal on 6 January 2022 to give evidence and present arguments. The agent had requested a postponement because she was unable to contact the employer to appear at the hearing on the employer nomination at the same time and date as this hearing. The Tribunal carefully considered this request but found that there was no reason given for the employer not attending as such, the request was declined.

7. The applicants were represented in relation to the review.

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 satisfies 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 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.

12. On 14 February 2022, the Tribunal wrote to the applicant inviting comment by 28 February 2022 in regard to the following information.

    ·On 28 October 2016, you lodged an application for a Regional Employer

    Nomination (Permanent) (Subclass 187) visa with the Department of Home
    Affairs (then called the Department of Immigration and Border Protection) (the
    Department).

    ·On 17 January 2019, the nominator, The Trustee for Hastings Trust, had their

    nomination application (nomination) refused by the Department. The nominator
    lodged an application for review of this decision with the Tribunal on 29
    January 2019.

    ·On 6 January 2022, the Tribunal affirmed the Department’s decision to refuse

    the nomination.
    This information is relevant to the review because the primary applicant must satisfy
    the criteria in clause 187.233 to be granted the visa. Clause 187.233 states:

    (3) The Minister has approved the nomination.

    If this criterion is not met, then the visa application cannot be granted. We may also subsequently find that the secondary applicants do not meet the secondary visa criterion 187.311 which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.

13. On 24 February 2022, the applicant requested a three (3) month extension of time to respond to the invitation. The Tribunal granted an extension of time to 14 March 2022 because the applicant had been aware of the reasons for the refusal of the visa application since February 2019 so for three (3) years and has had time to prepare a response.

14. On 14 March 2022, the applicant wrote to the Tribunal and argued at some length that the affirm decision on the employer nomination was flawed. The Tribunal can give limited weight to this as it does not go to the fact that there is no approved employer nomination. The applicant described the distress for her family, the amount of time she has spent in Australia and the contribution she can make to the Australian economy however this does not address the fact that there is no approved employer nomination.

15. The Tribunal finds that there is no approved employer nomination.

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

17. 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.

18. Mr Van My Le and Miss Thao Nhi Pham 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.

19. 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.

20. 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

21. 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.