Huang (Migration)

[2019] AATA 4459

Huang (Migration) [2019] AATA 4459 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zhao Huang

CASE NUMBER:  1821982

HOME AFFAIRS REFERENCE(S):           BCC2016/675968

MEMBER:Alan McMurran

DATE:27 September 2019

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 27 September 2019 at 2:50pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – no response to s 359A letter – not entitled to appear before the Tribunal – section 375A certificate – typed signature – relevant folios not identified – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 30 July 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2018 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 17 February 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). This stream applies to applicants seeking to work in regional Australia, who are sponsored by a nominator and who will be employed by the nominator on a full-time basis in the position for at least 2 years

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 the Direct Entry stream, to work in the nominated position of Office Manager in Queensland.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) because the nomination by Primary Security Group Pty Ltd which related to the applicant’s visa application has not been approved, having been refused by the Department on 21 May 2018.

6. The applicant included a copy of the primary decision with the application. The applicant is represented by an agent, Karl Young, of Australian Multicultural Education Centre (AMEC) Pty Ltd. The applicant has included the address of the representative in the application.

7. The Tribunal wrote to the applicant under section 359A of the Act on 9 September 2019. The Tribunal’s letter invited the applicant to comment on or respond to information. The letter provided particulars for comment or response informing the applicant that on 21 May 2018 the nomination lodged by the nominator for the purposes of the visa application was refused. The letter also advised that on 4 June 2018 the nominator had applied to the Tribunal for review of the refusal and in response to which on 19 March 2019, the Tribunal had determined it had no jurisdiction to review the decision. The Tribunal advised that the information before the Tribunal suggests the nomination for the position identified in the visa application was not approved.

8. The applicant was requested to respond to the Tribunal by 23 September 2019, or to seek an extension of time on or before that date if more time was required, to provide comments or response, and provide reasons why an extension of time was required. The Tribunal’s letter was dispatched by email to the representative’s nominated email address as advised by the applicant with the application, at 12:49 on 9 September 2019.

9. The Tribunal received no response on or before the due date of 23 September 2019, or at all. The applicant has not sought an extension of time to provide any information or response.

10. Pursuant to section 360 (3) of the Act, the applicant is now not entitled to appear before the Tribunal. The Tribunal has proceeded to deal with the application without taking any further action to obtain information or the applicant’s views, and to review the application on the information before it, which includes the Tribunal’s file and electronic records from the Department’s file BCC 2016 675968.

    Certificate under section 375A

11. For completeness, the Tribunal notes that the Department file contains a certificate pursuant to section 375A of the Act and dated 20 August 2018. The certificate contains a typed delegate’s signature, which has not been overwritten and upon the face of which there is no written signature. For that reason, the certificate may not be valid.

12. The certificate purports to prevent the disclosure otherwise than to the AAT of any matter or information contained in certain folios in the Department file BCC 2016/675968 relevant to file number CLD 2018/1245 7845. The specific folios to which the certificate purports to relate are not identified in the certificate, and those folios are not before the Tribunal. The certificate asserts that disclosure of the information would be contrary to the public interest, as it relates to departmental processes of investigation.

13. It is not possible for the Tribunal to determine whether there is a genuine public interest concern as the relevant folios have not been identified in the certificate, and are not before the Tribunal and in any event, the Tribunal is of the view that the certificate is not valid.

14. The Tribunal is also of the view that whatever might be asserted by the certificate, it has no bearing on the decision of this Tribunal, which relates only to whether or not there is a valid nomination by the nominator which has been approved by the Minister.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the Minister has approved the relevant nomination for the purposes of cl. 187.233 of the Regulations.

    Nomination of a position

17. 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.

18. 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.

19. The Tribunal has considered the information before it. The applicant provided certain information to the Department included with the application being the application itself, police clearance certificates, copies of educational qualifications and birth certificate, an employment contract proposed with the nominator, an IELTS language test result and a copy of the applicant’s passport. The applicant has provided no additional information to the Tribunal for consideration or any submissions in support of this review.

20. There is no information before the Tribunal that the applicant is the subject of any other nomination or outstanding application for a visa, or for review of a refusal of a visa. There is no information that the nominator has sought any further action in relation to the refusal of the nomination and then the Tribunal’s decision to affirm that refusal, or any further application related to the visa applicant.

21. The Tribunal notes the Department sent a natural justice letter to the applicant on 21 May 2018 inviting comment on the fact the related nomination was not approved. The applicant did not respond to the invitation and the Department proceeded to its decision on 16 July 2018. The Tribunal has noted above that the tribunal also sent a letter to the applicant in relation to this review, and in respect of which the applicant and/or the representative has not responded. The Tribunal finds accordingly that there is no further information or response to which it can have regard, and in circumstances where the nomination has been refused, together with the subsequent review of the nomination refusal which failed for want of jurisdiction.

22. On the evidence before it, the Tribunal finds that there is no approved nomination and the Minister has not approved the nomination to which the applicant’s visa application relates. The Tribunal is therefore satisfied that the applicant does not meet the requirements of the subclause at the time of decision.

23. Therefore, cl.187.233 is not met.

24. 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

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

    Alan McMurran
    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.