Jao (Migration)

[2023] AATA 1731

Jao (Migration) [2023] AATA 1731 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chia-Yu Jao

CASE NUMBER:  1917754

HOME AFFAIRS REFERENCE(S):          BCC2018/1269860

MEMBER:Karen McNamara

DATE:6 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2023 at 12:50pm

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

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

CASES
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Miss Chia-Yu Jao (the applicant) a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 March 2018. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant under the occupation of Accountant (General) (ANZSCO 221111).

5. The decision record provided to the Tribunal, records that the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required Miss Chia-Yu Jao to be the subject of an approved nomination. The delegate found that the associated nomination (lodged by International Services Corporation Pty Ltd) was refused on 20 May 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The applicant lodged an application for review with the Tribunal on 18 June 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

8. On 29 March 2023, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 16 May 2023 at 2:00 pm (NSW/QLD time).

9. On 5 April 2023, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient at the last email address provided in connection with the review). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to her comments or response, be the reason or part of the reason for affirming the decision under review. 

10. The information related to information before the Tribunal that shows on 19 July 2022, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to the applicant.

11. The Tribunal’s letter of 5 April 2022, noted that this information is relevant because cl.187.233(3) requires that the nomination made in relation to Miss Chia-Yu Jao by the nominating employer, has been approved. The letter further stated:

    ‘The nomination relied on to satisfy cl 187.233 must be the one that was made at the time of the visa application – it is not possible to rely on another nomination. You must

    have a related nomination to be able to be granted the visa.

    If the Tribunal relies on this information, it may find that the nomination in relation to

    you has not been approved and consequently the decision under review would be

    affirmed. You must have a related nomination to be able to be granted the visa.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 19 April 2023. If the comments or response are in a language other than English, they must be accompanied by an

    English translation from an accredited translator.

    If you cannot provide your written comments or response by 19 April 2023, you may ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 19 April 2023, and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether

    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 29 March 2023. Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.’

12. On 18 April 2023, the applicant responded to the Tribunal’s invitation to comment as follows:

    ‘   Dear Sir/ Madam

    I am writing this letter to comment on the invitation to respond to the information on the letter provided by you. The company that nominated me for the 187 visa had suddenly ceased operating and I was not informed of the same. It is only when I had received the letter from the Tribunal to respond to the invitation that I came to know that my nomination is refused. When I had received the hearing letter I had tried to contact the company to check if they had received any letter for the hearing, and I could not get hold of them.

    I was previously working with the company but during the Covid period and they did not have much student, the company that I worked for told that my visa wont be much long and if I could wait till my visa comes and the borders open so they will have more business. I agreed to wait for my visa and to re-join when my visa is approved. They also said they will do everything to get my nomination approved.

    I was very devastated to hear my nomination has been refused as I had been working hard for my employer that has nominated me for the visa. At the current circumstances of the onset of the Covid, many employers are still only recovering from the pandemic, and they are not willing to take in new employees until their business becomes steady. I am currently trying hard to secure another employer that will be willing to sponsor me for the visa but at these difficult times I am finding it very difficult to even secure an interview.

    Considering my above circumstances, I would like to kindly request the Tribunal to grant me additional time to secure an employer that is willing to sponsor me. I would be be of utmost help for me if I have some additional time to find an employer to sponsor me.

    Thank you for considering my request.[1]

    [1] Prepared and transcribed as submitted by applicant

13. On 19 April 2023, the Tribunal advised the applicant that no postponement would be granted and that the hearing would proceed as scheduled on 16 May 2023.

14. In relation to the applicant’s request that the Tribunal delay making a decision so that the applicant can secure an employer willing to sponsor her, the Tribunal is mindful that requests for deferrals must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18. The Tribunal carefully considered the applicant’s request but declined to defer its decision in this matter to provide the applicant time to find an employer to sponsor her. Furthermore, the Tribunal considers that the placement of an applicant’s review on hold to provide them opportunity to find a new sponsor, does not contribute towards achieving the objectives of the functions of the Tribunal as per section 2A of the Administrative Appeals Tribunal Act.[2]  

    [2] In carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and proportionate.

15. On 9 May 2023, the applicant provided to the Tribunal a completed response to hearing invitation.

16. Miss Chia-Yu Jao appeared before the Tribunal via telephone on 16 May 2023, to give evidence and present arguments.

17. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

20. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

21. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

22. At the hearing of 16 May 2023, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.187.233, the applicant must be subject of an approved nomination.

23. The Tribunal invited the applicant to address the hearing in so far as there being no evidence of the applicant being subject of an approved nomination.

24. The applicant in summary, acknowledged that she knew that the nomination had been refused and contacted her Migration Agent and that the employer would explain the situation to Immigration. The applicant lost the job due to the impact of COVID 19 and is now working for a transport company part time.

25. The Tribunal has empathy for the applicant circumstances, however the Tribunal must apply the legislation as it stands. As explained to the applicant at the hearing, the Tribunal must apply the relevant law. 

26. Having considered the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

27. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

28. 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

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

    Karen McNamara
    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.