Ji (Migration)

[2023] AATA 1408

Ji (Migration) [2023] AATA 1408 (11 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhenqing Ji

REPRESENTATIVE:  Mrs Li Qin (MARN: 1278075)

CASE NUMBER:  1920502

HOME AFFAIRS REFERENCE(S):          BCC2017/3624034

MEMBER:De-Anne Kelly

DATE:11 May 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 11 May 2023 at 11:26am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 368
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 (Cth) (the Act).

2. The applicant applied for the visa on 4 October 2017. 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 Cook.

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 the employer nomination by SHG Pty Ltd trading as Giddy Goat Café & Bar was refused being the application referred to in cl 187.233(1).

6. The applicant was invited to appear before the Tribunal on 10 May 2023 to give evidence and present arguments in a hearing to last two hours however did not appear despite several mobile phone calls to the number provided in the review application. This was a Multi Applicant Hearing List MAHL by telephone in which the introductory remarks were to be given to the applicants as a group and then each contacted individually to discuss their case and provide evidence.

7. SMS messages were sent five and one day prior to the hearing to the applicant on the Mobile number provided in the review application to alert the applicant to the hearing. On the day of the hearing the registry called the mobile number of the applicant as given on the review application several times but there was no response.

8. The applicant did not appear by telephone at the appointed time to attend the hearing and no postponements or extensions of time were requested. As such sections 362B (1) and (1A) of the Migration Act (Cwth) 1958 applies and the Tribunal may by written statement under s368 make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It is reasonable to proceed to a decision on this matter.

9. The registry rang the agent who advised that the applicant had been granted a 482 visa and since his case could not succeed without an employer nomination, he would not be attending the hearing. The Tribunal considers it reasonable to proceed to a decision on this matter.

10. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies cl 187.233(3) which provides.

    (3)       The Minister has approved the nomination.

    Nomination of a position

13. 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.

14. 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.

15. The Tribunal noted that information had been provided prior to the hearing but this related to another business Vita Dolce_Y Pty Ltd and was not material to the decision in this case.

16. The Tribunal notes the information that when the employer nomination was refused the employer lodged a review application with the Tribunal which was withdrawn by the nominator and accepted by the Tribunal on 12 September 2022. As such there is not an approved employer nomination to satisfy cl. 187.233(3) and this may be part or all of the reason to affirm the decision to refuse the visa application by the primary applicant.There is no approved employer nomination to satisfy cl 187.233(3).

17. Therefore, cl 187.233 is not met.

18. 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

19. 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

    (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.