Lau (Migration)

[2019] AATA 1842

Lau (Migration) [2019] AATA 1842 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liq Yii Samuel Lau

CASE NUMBER:  1815960

HOME AFFAIRS REFERENCE(S):           BCC2016/2229463

MEMBER:Nicola Findson

DATE:11 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 11 June 2019 at 10:40am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 (the Act).

2. The applicant applied for the visa on 30 June 2016. 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). 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 Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that, amongst other things, he was the subject of an approved nomination by his employer (cl.187.233(3)).

6. The applicant appeared before the Tribunal on 27 March 2019, to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. 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.

10. 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.

11. The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review.  It records that the nomination application of which the applicant was the subject, lodged by the Trustee for the MLY Investment Trust (trading as Taro Taro Perth), was refused on 12 April 2018.  Accordingly, the delegate found that the nomination was not approved and cl.187.233(3) was not met.

12. At the hearing the Tribunal explained to the applicant the requirements of cl.187.233. The Tribunal also, pursuant to s.359AA of the Act, invited the applicant to comment or respond to information that his visa application was refused by the Department on 15 May 2018, because the nomination application lodged by his sponsoring employer, the MLY Investment Trust, was not approved; the decision not to approve the nomination application was made by the Department on 12 April 2018; and the Trustee for the MLY Investment Trust did not apply for a review of this decision to the Tribunal. The Tribunal explained that this information was relevant to the requirements in cl.187.233(3), which require the applicant to be the subject of an approved nomination. The applicant did not seek to take up the opportunity for an adjournment and elected to provide his response immediately.  By way of response, he indicated to the Tribunal that he understood the requirements for the visa. He told the Tribunal that he was aware that the nomination application lodged by his nominating employer was not approved by the Department.  He indicated that he had been in Australia for 10 years and had encountered very “bad luck” in his attempts to obtain permanent residence here. He indicated that he was unsuccessful the first time, about 7 years ago, when despite two years of study and one year of working in the relevant industry, his nominated occupation was removed from the Skilled Occupation List, thereby making him ineligible for the visa he had applied for.  He went on to indicate that despite securing another sponsor, and working for the nominating employer for over a year, after his visa application was lodged, the “company closed down and abandoned him”.     

13. The applicant provided a bundle of documents to the Tribunal during the review process, including but not limited to IELTS Test Report forms, academic qualifications, and several letters in support of his review application, including one from Mr Ben Morten MP.  The Tribunal acknowledges this evidence.

14. The applicant told the Tribunal that it would be very difficult for him to return to Malaysia.  He indicated that while he was born in Malaysia he had been raised from a very young age, with his family, in Singapore.  He said he did not speak Malay.  He also indicated that he had not completed his national service in Singapore and was concerned about the consequences of not doing so, if he returned there. 

15. The Tribunal explained to the applicant that, notwithstanding the compassionate reasons he had outlined to it as well as the evidence in support of his application, if it found he was not the subject of an approved nomination it would have to, by law, affirm the delegate’s decision.  The applicant indicated he understood.

16. On the basis of the evidence before it, the Tribunal finds that at the time the applicant lodged his visa application on 30 June 2016, he was the subject of a nomination application by the MLY Investment Trust for the position of Cook.  The Tribunal further finds that the nomination application by the MLY Investment Trust was refused by the Department on 12 April 2018, and there is no record that it was the subject of an application for review to this Tribunal.

17. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved. Given this, the Tribunal finds that the requirements of cl.187.233 are 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.

    Nicola Findson
    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.