Lai Shan Kibe (Migration)

[2019] AATA 3135

Lai Shan Kibe (Migration) [2019] AATA 3135 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lai Shan Kibe NG

CASE NUMBER:  1903604

HOME AFFAIRS REFERENCE(S):          BCC2017/2883586

MEMBER:Katie Malyon

DATE:8 May 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 08 May 2019 at 9:30 am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Hotel or Motel Manager – nomination not approved – no review application by sponsoring employer – misled by previous migration agent – tribunal has no discretion – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994, Schedule 2, cl 187.233(3)

CASES

Singh v MIBP [2017] FCAFC 105

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, Miss Lai Shan Kibe NG, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Ng applied for the visas on 11 August 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 (the Regulations).  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.  In the present case, Miss Ng is seeking the visa in Direct Entry stream, to work in the nominated position of Hotel or Motel Manager.

4. The delegate refused to grant the visa on the basis Miss Ng did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application made by her prospective employer Bridgeview Motel Management Pty Ltd (the Company) was refused by the Department.

   Background

5. Miss Ng was nominated to fill the position of Hotel or Motel Manager by the Company for tis business on the Central Coast of NSW.  The Company’s nomination was refused by the Department on 17 December 2018.  As a result, the Department refused Miss Ng’s Subclass 187 visa application.  The Company did not seek review of the delegate’s refusal of its nomination.

6. Accordingly, on 29 March 2019, the Tribunal wrote to Miss Ng pursuant to s.359A of the Act inviting her to comment on, or respond to, information which would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse her Subclass 187 visa application. Miss Ng was informed the Company had not lodged a review application with the Tribunal in respect of the delegate’s decision to refuse its nomination of the position of Hotel or Motel Manager for Miss Ng. As a result, there is no approved nomination by the Company in relation to her. In the circumstances, her Subclass 187 visa application could not meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

7. Miss Ng’s newly appointed representative responded to the Tribunal’s invitation with a submission and an outline of instructions received from his client explaining how she came to be in this position.  The representative states:

   ·Miss Ng enquired of her former migration agent who was working with Goldman Pintex Management Pty Ltd (Goldman Pintex) on many occasions about when and how a review application regarding the (refused) nomination can be made to the Tribunal;

   ·Goldman Pintex misled Miss Ng by telling her not to worry about the Company’s appeal and that they will appeal to the AAT on her behalf;  

   ·however, Goldman Pintex failed to lodge a review application in respect of the Company’s refused nomination;

   ·Goldman Pintex should have known that Miss Ng cannot succeed at the Tribunal regarding her Subclass 187 appeal if the Company has not lodged its application for review;

   ·even with that knowledge (that is, despite Goldman Pintex failing to lodge with the Tribunal an application for review of the delegate’s decision to refuse the Company’s nomination application in respect of Miss Ng), Goldman Pintex still acted for Miss Ng and lodged the AAT appeal in relation to the visa application: this was not an honest action of a professional and responsible agent acting on behalf of their client;

   ·Miss Ng suspects that Goldman Pintex intentionally or recklessly misled her in the visa application and they were not compliance (sic) with the Code of Conduct for registered migration agents who should act in good faith and in the best interest (sic) of their client; and,

   ·Goldman Pintex was deregistered on 27 January 2019.

8. The newly appointed representative submits that Miss Ng was a victim: she was the deceived visa applicant who was not fairly treated by her former migration agent who acted for her in a professional misconduct (sic).  He concludes that Miss Ng should not bear an outcome of the visa refusal if such outcome was caused by the misconduct of her (former) migration agent.  In addition, he submits that for the procedure (sic) fairness purpose, Miss Ng should be provided an extension (of time) to prepare, facilitate and have an appeal in relation to the nomination.

   Hearing

9. Miss Ng appeared before the Tribunal on 2 May 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, although the Tribunal notes Miss Ng used the interpreter on rare occasions only.  Miss Ng was represented in relation to the review by her newly appointed registered migration agent, who also attended the hearing.

10. At the commencement of the hearing, the Tribunal acknowledged receipt of Miss Ng’s representative’s submission.  It also noted that it has no discretion and must apply the law for the reasons outlined by the Full Federal Court of Australia in Singh’s case referred to in its s.359A letter.

11. The Tribunal observed that Miss Ng’s Subclass 187 visa application is linked to the Company’s nomination application which was refused by the Department on 17 December 2018.  It provided Miss Ng during the hearing with a copy of her Subclass 187 visa application which included the relevant transaction reference number (TRN) for the Company’s nomination and referred her to the declaration (on the penultimate page of her application) required to be made for the purposes of a valid Subclass 187 application.  This declaration confirms that the relevant TRN for the Company’s nomination was provided in her visa application.  Miss Ng acknowledged and thanked the Tribunal for its explanation in this regard.  She also accepted its observation that it has no discretion and must apply the law.

12. Miss Ng told the Tribunal that, as soon as she got notice of the refusal of the nomination, she tried to contact her then representative.  She said she tried to call Goldman Pintex many times but they did not take her call and nor did they reply to her emails.  After 5 or 6 days she went to their office to see them to ask about an appeal regarding the refused nomination. However, she was told that an appeal would not be needed: instead, they told her a new nomination by the Company would be lodged. 

13. Asked whether, following refusal of the nomination, she contacted the Company direct, Miss Ng said she tried to phone the mobile number of the person she had met for an interview (at Starbucks in Chatswood) but he didn’t answer and so she tried the Company’s main line.  She was told that the ‘boss was overseas’.  When she called back a couple of days later, she was told that ‘he was not back yet’. 

14. Miss Ng confirmed that, at no point, did she contact the Department for advice.  However, she did ‘go online’ (to the Department’s website) and established that her Subclass 187 visa application was ‘linked to that nomination’ made by the Company.  Miss Ng said it was when she realised this that she then went to Goldman Pintex’s office in North Sydney with her boyfriend.  That’s when they told her ‘it was really only the process’ and she ‘just had to wait’.  She added that, after the Tribunal sent its (s.359A) letter, she tried to contact her representative again by ‘that’s when we found out they had run away’.  Eventually, Miss Ng said she managed to speak with her contact at the Company.  He told her that the representative from Goldman Pintex ‘never’ told him that the Company’s nomination was refused.  Miss Ng said that she paid $60,000 to Goldman Pintex for services offered by the Company to help her secure a Subclass 187 visa.

15. In relation to her current representative’s request for an extension of time to prepare a review of the delegate’s refusal of the Company’s nomination, the Tribunal referred to the timeframe for lodgement of a review application.  Miss Ng acknowledged that it would not now be possible for the Company to lodge an application for review with the Tribunal as it would be out of time and, as a result, the Tribunal would have no jurisdiction to review the matter.

16. Having regard to Miss Ng’s evidence of what appears to be a visa scam perpetrated by a registered migration agent, the Tribunal provided her with contact details for the Office of Migration Agents Registration Authority (OMARA) as well as the Australian Competition & Consumer Commission (ACCC).  It encouraged her to explore with her current representative visa options to either remain in, or return to, Australia and to pursue complaints to both OMARA and the ACCC.  

17. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    ISSUE

18. The issue in the present case is whether there is an approved nomination in respect of the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

19. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in the Attachment to this decision.  Essentially, it requires that the position to which the application relates must 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.  

20. 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 (emphasis added) 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.

21. As noted above, the Company’s nomination was refused by the Department and, subsequently, it did not seek review to the Tribunal of that refusal.

22. Therefore, the Tribunal finds that cl.187.233 of Schedule 2 to the Regulations is not met by Miss Ng.

23. Miss Ng 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 stream.  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.

24. Miss Ng 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.

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    Schedule 2 Part 187

    ..

    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.

    oOOo