HO (Migration)

[2020] AATA 383

HO (Migration) [2020] AATA 383 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anh Nhat HO
Mrs Thi Duyen LE
Mr Phuc Tam HO

CASE NUMBER:  1818580

HOME AFFAIRS REFERENCE(S):          BCC2017/3959545

MEMBER:Mr S Norman

DATE:20 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the first and second named applicants (Mr Anh Nhat HO and Mrs Thi Duyen LE) Regional Employer Nomination (Permanent) (Class RN) visas.

The Tribunal has no jurisdiction with respect to Mr Phuc Tam HO

Statement made on 20 February 2020 at 1:45pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s position nomination refused – refusal affirmed on review – no response to tribunal’s s 359 letter – third applicant offshore at time of application and review – decision under review affirmed for first and second applicants, no jurisdiction for third applicant

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 26 October 2017. 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). 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Cafe or Restaurant Manager (ANZSCO: 141111). The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the Director of Annilax Enterprises Pty Ltd (Mr Anand GOPINATH). The applicant was represented in relation to the review by the registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

6. 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.

7. 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.

8. On 17 May 2018, the nomination application lodged by Annilax Enterprises Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister. By letter of 18 May 2018, the applicant was invited to comment about this information within a prescribed period. As at the date of the delegate’s decision, no material response had been received. Based on the evidence before them, the delegate was not satisfied the applicant met cl.187.233(3); or cl.187.233.

9. Next, the delegate considered the applicant’s claims under the Temporary Residence Transition Stream. Since the correlating nomination did not seek to meet the requirements of was not assessed under r.5.19(3), the applicant did not meet cl.187.223. Next, the delegate considered the application of the Agreement Stream. However, as the correlating position was not nominated by an employer in accordance with a Labour agreement, the applicant did not meet cl.187.242. Next, the delegate considered cl.187.311 (member of the family unit). However, as no applicant met the primary criteria for the visa, none was entitled to the visa based on being a member of the family unit of a person who had.

10. As the applicant did not meet relevant criteria, the delegate refused to grant the applicant the Regional Sponsored Migration Scheme (Subclass 187) visa.

11. By s.359A letter of 5 February 2020 (emailed to the authorised recipient), the applicant was advised that on 31 January 2020, the Tribunal affirmed the decision to refuse the nomination of the applicant’s nominator (Annilax Enterprises Pty Ltd). The applicant was advised this information was relevant because cl.187.233(3) required that the nomination made in relation to the applicant by their nominating employer had been approved. The applicant was also advised that if the Tribunal relied on this information it may find that the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The applicant was then invited to comment in writing by 19 February 2020. As at the date and time of this decision, no response had been received.

12. That being said, and based on the evidence before the Tribunal, I am satisfied the applicant had not met cl.187.233(3); and that cl.187.233 is not met. 

13. The Tribunal also considered cl.187.311 (member of the family unit). However, as no applicant met the primary criteria for the grant of the visa, no applicant was entitled to the visa as a member of the family unit of a person who had.

14. 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.

15. The Tribunal notes it has no jurisdiction with respect to Mr Phuc Tam HO. Mr Phuc Tam HO was offshore at the time of the visa application, and offshore at the time of the review. As advised in the Department letter of 18 June 2018,[1] there were no merits review right for the decision relating to Mr Phuc Tam Ho.

    [1] Tribunal – from folio 8.

    DECISION

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

17. The Tribunal has no jurisdiction with respect to Mr Phuc Tam HO.

    Mr S Norman
    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.