Li (Migration)

[2018] AATA 3587

Li (Migration) [2018] AATA 3587 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ya Li

CASE NUMBER:  1714409

HOME AFFAIRS REFERENCE(S):           BCC2016/4116204

MEMBER:Penelope Hunter

DATE:23 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2018 at 4:03pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 Immigration and Border Protection 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 6 December 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 a Gallery or Museum Curator.

   Background

5. The applicant applied for the visa on the basis of being nominated by her employer, Thredbo Valley Distillery Pty Ltd. An application by Thredbo Valley Distillery Pty Ltd to the Department for approval of the nomination was refused by the Department on 29 May 2017. As the requirement that the Minister approve the nomination under cl. 187.233 of Schedule 2 had not been satisfied, the delegate found that the applicant did not meet the criteria in cl. 187.233 of Schedule 2 to the Regulations and refused the application.

6. Thredbo Valley Distillery Pty Ltd and the applicant applied to the Tribunal for a review of the decision to refuse the nomination application and the visa application. The applicant appeared before the Tribunal on 21 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brad Spalding. The applicant was represented in relation to the review by her registered migration agent and the Tribunal was assisted by an interpreter in the English and Mandarin languages.

7. On 2 August 2018, the Tribunal affirmed the decision to refuse the nomination application by Thredbo Valley Distillery Pty Ltd. On 6 August 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act providing this information. The applicant was advised that the information was important as cl. 186.233 requires that the nomination be approved. The applicant was requested to respond to this information by 20 August 2018. The Tribunal has received no further submissions from the applicant.

8. 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

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. When the applicant attended the hearing on 21 June 2018, the Tribunal explained that to meet cl187.233 the applicant  must be the subject of an approved nomination. On 2 August 2018, the Tribunal affirmed the decision to refuse the nomination application by Thredbo Valley Distillery Pty Ltd. This was the nomination that was the subject of the declaration when the visa application was lodged by the applicant.

12. The applicant has not provided any evidence that she is subject to an approved nomination.

13. Having considered the information before it the Tribunal is not satisfied that cl. 187.233(3) is met.

14. Therefore, cl.187.233 is not met, and the applicant does not meet an essential criteria for the grant of a Subclass 187 visa.

15. 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

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

    Penelope Hunter
    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.