Lee (Migration)

[2020] AATA 1687

Lee (Migration) [2020] AATA 1687 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chi-Yu Lee

CASE NUMBER:  1809708

HOME AFFAIRS REFERENCE(S):          BCC2017/4000452

MEMBER:Sheridan Lee

DATE:27 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2020 at 4:43pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Dental Technician – subject of ­an approved nomination – 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 29 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 (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.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Dental Technician.

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 Minister had not approved the nomination application made in respect of the position.

6. The applicant appeared before the Tribunal on 5 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr Guy John Angove, Director of Orthosmart Pty Ltd.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. On 14 February 2018, the nomination application lodged by Orthosmart was refused by a delegate of the Minister. Orthosmart applied to the Tribunal for merits review of that decision and on 11 May 2020 the decision under review was affirmed.

10. On 12 May 2020, the Tribunal invited the applicant to comment on or respond to the above information. In addition, the letter advised that Departmental records indicated that the applicant was not the subject of an approved or pending nomination application.

11. The letter explained that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application be the subject of an approved nomination. If the Tribunal were to rely on the information in making a decision, it would find that the position specified in the visa application was not the subject of an approved nomination. This would mean that the applicant did not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

12. On 25 May 2020, the applicant responded to the invitation. The response acknowledged that the applicant is not the subject of an approved nomination. The majority of the response went to the substantive issue in the decision to affirm the decision in relation to the nomination, not the current matter. The applicant expressed dismay that his visa could be refused for what he viewed as a minor administrative issue.

13. Based on the evidence before it, the Tribunal must find that the appointment mentioned in subclause 187.233, lodged by Orthosmart on behalf of the applicant, was not approved. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 187.233(3) at the time of its decision.

14. 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

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

    Sheridan Lee
    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.