Li (Migration)

[2018] AATA 4101

Li (Migration) [2018] AATA 4101 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yuanda Li
Miss Hui Chen

CASE NUMBER:  1801668

HOME AFFAIRS REFERENCE(S):           BCC2017/2291425

MEMBER:Stavros Georgiadis

DATE:27 August 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 27 August 2018 at 2:46pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – not subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, 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 (the Act).

2. The applicants applied for the visas on 28 June 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). 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 recruitment consultant (ANZSCO 223112).

5. The delegate refused to grant the visas because the first named applicant did not meet cl.187.233 of Schedule 2 to the Regulations as there was no approved nomination of the occupation to satisfy cl.187.233(3).

6. The applicants appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Michael Racher Director, Southern Cross Personnel Pty Ltd, on behalf of the nominating employer in the related casefile 1731242. The related matters were heard together in a combined hearing.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision, and whether the second named applicant (as member of the same family unit) meets the secondary criteria for the grant of the visa. For the nomination to be approved, all the requirements must be met.

   Nomination of a position

10. 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.

11. 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.

12. The Tribunal has considered the visa application on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor (cl.187.233(1)).

13. The Tribunal is satisfied, from the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Southern Cross Personnel Pty Ltd. (cl.187.233(2)).

14. At the hearing the Tribunal put to the applicants, in accordance with the procedure under s.359AA of the Act, that without an approved nomination, they would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visas and that the application would, on that basis, be unsuccessful. The Tribunal invited the applicant to comment on, or respond to, the information that in such a decision refusing the nomination, this would be the reason or part of the reason, for affirming the decision that is under review.  The Tribunal also advised the applicant that he could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered the applicant reasonably needed additional time to comment on, or respond to, the information. 

15. There was no additional time given to comment or respond. The applicant conveyed to the Tribunal that he understands and accepts that in circumstances where there is no nomination approval, it would not be open for the visa applications to be successful as approval of the nomination is one of the requirements for the grant of the visas.  On 27 August 2018 the Tribunal affirmed the decision to refuse the nomination of the position by Southern Cross Personnel Pty Ltd. 

16. When asked at the hearing, the applicant confirmed to the Tribunal that there is no approved nomination.  Having considered the available evidence before it, the Tribunal is satisfied that the nominated position is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.  

17. Therefore, cl.187.233 is 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 in respect of all applicants as members (spouses) of the same family unit [cl. 187.311].

    DECISION

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

    Stavros Georgiadis

    
    

    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.