Leung (Migration)

[2021] AATA 5335

Leung (Migration) [2021] AATA 5335 (22 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ka Yi Leung
Mr Hoi Shuen Chan

CASE NUMBER:  1830333

HOME AFFAIRS REFERENCE(S):          BCC2018/816876

MEMBER:Antonio Dronjic

DATE:22 November 2021

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 22 November 2021 at 12:42pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Translator – subject of an approved nomination – minimum requirement for response to s 359A invitation – judicial review commenced – request for stay of proceedings declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), Schedule 2, cl. 187.233

CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 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 19 February 2018. 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 Translator – (ANZSCO 272413).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 because the nomination application lodged by the applicant’s employer, Preston Rowe Paterson (Warrnambool) Pty Ltd was refused by the Department on 22 August 2018. The delegate also refused to grant subclass 187 visa to the secondary applicant.

6. The applicants applied to this Tribunal for review of the primary decision on 16 October 2018 and were represented in relation to the review by their registered migration agent. They submitted a copy of the primary decision record with their review application.

7. On 30 September 2021, the Tribunal wrote to the applicants inviting comments on or response to the following information under section 359A:

   ·Your visa application was refused by the Department on 28 September 2018, because the nomination mentioned in cl.187.233(3) has not been approved by the Department.

   ·The decision not to approve the nomination by Preston Rowe Paterson (Warrnambool) Pty Ltd was made by the Department on 22 August 2018.

   ·Preston Rowe Paterson (Warrnambool) Pty Ltd applied for review of this decision at this Tribunal on 10 September 2018.

   ·On 29 September 2021, the Tribunal decided to affirm the decision made by the Department.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 187 visa. This is because one of the criteria contained within subclass 187, namely cl. 187.233(3) requires that the nomination has been approved by the Minister.

   This information is relevant to the second named review applicant because cl.187.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and they made a combined application with the primary applicant.

   Accordingly, if the first named review applicant is not a holder of a subclass 187 visa, the secondary applicant will not be able to meet cl.187.311.

   You are invited to give comments on or respond to the above information in writing.

   …

8. On 11 October 2021, the applicants’ representative responded to the Tribunal letter by submitting that the first named applicant’s employer intends to seek judicial review of the related nomination application refusal. The representative requested that the Tribunal adjourns proceeding in this matter until the judicial proceedings are completed.

9. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a ‘response’ to a s.359A invitation and that any reply directed to the information itself will constitute a response.

10. On 14 October 2021, the Tribunal wrote to the applicants advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the hearing on 25 November 2021.

11. On 12 November 2021, the applicants’ representative wrote to the Tribunal enquiring what the purpose was of scheduling a hearing in this matter considering that the related nomination application was affirmed by the Tribunal. On the same day, the Tribunal officer responded to this enquiry advising that, by responding to the Tribunal’s s.359A letter, the applicants preserved their right to appear before the Tribunal at the hearing. With the same letter, the Tribunal officer sought clarification from the applicants’ representative as to whether the applicants consent to the Tribunal deciding the review without the applicants appearing before it (as per s.360(2)(b) of the Act).

12. On 17 November 2021, the applicants’ representative wrote to the Tribunal advising that the first named applicant’s employer commenced proceedings before the Federal Circuit and Family Court and requested that the Tribunal stay its proceedings until the judicial review is finalised. The representative enclosed a copy of the Notice of Filing and Hearing.

13. On 18 November 2021, the Tribunal, inter alia wrote the following to the applicants:

    Referring to the email sent to the Tribunal on 17 November 2021 requesting for a stay of proceedings, the Tribunal acknowledges that the nominating business commenced judicial review proceedings before the Federal Circuit and Family Court on 3 November 2021 and that the Court’s directions hearing date was set for 22 June 2022.

    However, it is unclear when judgment will be delivered by the Federal Circuit and Family Court. This is not a case where the Tribunal is being asked to adjourn the review to await an outcome which is imminent. In addition, there is no evidence before the Tribunal to suggest that the judgment would be favourable to the applicant in the present circumstances of this case.

    The Tribunal notes that if the applicant’s employer is successful in challenging the Tribunal’s decision related to the nomination application, and the visa decision was based on the nomination decision, the visa decision could not stand (Mora v Minister for Immigration and Border Protection [2018] FCA 1819).

    The Tribunal acknowledges that the applicant would be required to commence a judicial review in respect of the visa refusal and meet the cost associated with lodging a separate judicial review application.

    For the reasons stated above, the Tribunal decided not to stay the proceedings or delay making its decision until the Court makes its decision on the judicial review application.

    The scheduled hearing will proceed as scheduled

14. On 19 November 2021, the applicants’ representative submitted the applicants’ written consent for the Tribunal deciding the review without the applicants appearing before it (as per s.360(2)(b) of the Act).

15. As the applicants consented under s.360(2)(b) of the Act to the Tribunal deciding the review without the applicants appearing before it, the Tribunal proceed to its decision.

16. 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

17. 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.

18. 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 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.

19. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233 lodged by Preston Rowe Paterson (Warrnambool) Pty Ltd on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 187.233 at the time of its decision.

20. 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.

21. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 187 visa as he does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that the secondary applicant meets the primary visa criteria for this subclass in his own right.

    DECISION

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

    Antonio Dronjic
    Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.