Le (Migration)

[2023] AATA 1734

Le (Migration) [2023] AATA 1734 (2 June 2023)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi My Linh Le
Mr Chi Hung TO
Mr Chi Nguyen TO
Miss Thi Mong Cam TO

CASE NUMBER:  1922183

HOME AFFAIRS REFERENCE(S):          BCC2017/4964751

MEMBER:Susan Reece Jones

DATE:2 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.  

Statement made on 2 June 2023 at 3:21pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Hair or Beauty Salon Manager – subject of an approved nomination – no response to s.359A invitation – 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 December 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Hair or Beauty Salon Manager (ANZSCO – 142114).

5. The delegate refused to grant the visas because the nominator (Thi Mong Thuy Le) did not meet cl 187.233 of Schedule 2 to the Regulations because the nominator:

   ·failed to provide evidence of the required advice being either requested or received from the relevant Regional Certifying Body in accordance with subregulation 5.19(4)(h)(ii)(F);

   ·did not pay the employer nomination fee mentioned in regulation 5.37 in order for the application to be assessed under regulation:5.19(4)(h); and

   ·failed to provide any verifiable financial documents to show company’s financial viability to demonstrate the applicant had the financial capacity to pay the applicant’s salary for at least two years: 5.19 (4)(d)

6. On 19 August 2022, the Tribunal affirmed the decision of the nominator.  

7. On 27 April 2023, the Tribunal wrote to the applicant inviting the applicant to comment on or respond to certain information which the Tribunal considers would, subject to comments or response from the applicant, be the reason, or a part of the reason, for affirming the decisions under review.

8. The applicant was invited to give comments on or respond to the above information in writing by 11 May 2023. The applicant was also advised that the applicant may ask the Tribunal for an extension of time in which to provide the comments or response. The applicant was advised that if such a request was made, it must be received by the Tribunal by 11 May 2023, and that the applicant must state the reason why the extension of time is required.

9. As the Tribunal has received no response from the applicant, the Tribunal has proceeded to decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the relevant nomination has been approved as required by cl.187.233.

    Nomination of a position

12. 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.

13. 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.

14. The applicant applied for a visa on the basis of a nomination made by Thi Mong Thuy Le (trading as LOTUS NAILS AND BEAUTY). The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which she made the relevant declaration at the time of the visa application, was refused by the Department on 20 July 2019.

15. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 19 August 2022, the Tribunal affirmed the Department’s decision.

16. On 27 April 2023, the Tribunal wrote to the applicants pursuant to s359A, inviting the applicants to comment on or respond to certain information which the Tribunal considers would, subject to comments or response from the applicants, be the reason, or a part of the reason, for affirming the decision under review. The applicants were advised that the Tribunal had not made up its mind about the information.

17. The particulars of the information were:

    ·    The application for approval of the nominated position made by Thi Mong Thuy Le (the nominator) was refused by a delegate of the Minister for Immigration.

    ·    The nominator sought a review of that decision, but it was affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.

    ·    This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicant’s visa application is the subject of an approved nomination.

18. The applicant was invited to give comments on or respond to the above information in writing by 11 May 2023. The applicant was also advised that the applicant may ask the Tribunal for an extension of time in which to provide the comments or response. The applicant was further advised that if such a request was made, it must be received by the Tribunal by 11 May 2023 and that the applicant must state the reason why the extension of time is required.

19. The applicant was advised that if the Tribunal did not receive comments or a response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information. In addition, the applicant was advised that the applicant would also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

20. As the Tribunal has not received a response from the applicants, the Tribunal has proceeded to decision.

21. It follows from this that where a nomination is refused or withdrawn, the applicant will not meet    cl 187.233, unless there is also a review of any decision to refuse the nomination which is pending. This is not the case here.

22. Therefore, given the above the Tribunal finds that cl.187.233(3) is not met by the applicant and thus, she does not meet cl.187.233 as a whole.

23. 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 in relation to her.

24. In relation to the second, third and fourth visa applicants (being the applicant’s husband and children), the Tribunal must affirm the decision not to grant the second, third and fourth visa named applicants in subclass 187 visas, as they do not meet the secondary visa criteria to members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Susan Reece Jones
    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.