LI (Migration)

[2018] AATA 3392

LI (Migration) [2018] AATA 3392 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms TONGWEN LI

Mr XIHUI GOU
Mr YANBO GOU
Miss HAIYUE GOU

CASE NUMBER:  1620307

DIBP REFERENCE(S):  BCC2016/1555845

MEMBER:Bridget Cullen

DATE:30 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 30 July 2018 at 10:47am

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, cls 187.233(3), 187.311

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 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 26 April 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant, Ms Tongwen Li, (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing Manager (ANZSCO 131112). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application lodged by Man Office (Australia) Pty Ltd was refused by a delegate of the Minister for Immigration and Border Protection on the 19 October 2016. As a result Ms Li did not meet cl.187.233(3) of Schedule 2 to the Regulations. A copy of the delegate's decision was provided to the Tribunal.

6. The delegate found in regard to the dependant applicants (Mr Xihui Gou, Mr Yanbo Gou, and Miss Haiyue Gou), that as the applicants are not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, cl.187.311 is not satisfied by Mr Xihui Gou, Mr Yanbo Gou, and Miss Haiyue Gou.

7. The applicants applied to the Tribunal on 30 November 2016 for review of the delegate's decision.

8. The applicant, Ms Tongwen Li, appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a NAATI Level 3 accredited interpreter in the Mandarin and English languages.

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

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 applicants meet the requirements of cl.187.233. 

    Nomination of a position

12. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

13. 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.

14. On the 11 July 2018, the Tribunal affirmed the decision refusing the approval of the nomination made by Man Office (Australia) Pty Ltd in respect of the applicants. As the nomination has been refused, regulation 187.233(3) is not met.

15. On 13 July 2018, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the applicants’ representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal's decision to affirm the decision not to approve the nomination made by Man Office (Australia) Pty Ltd which the Tribunal explained was relevant to them meeting cl.187.233(3), which requires the nomination to be approved.

16. On 25 July 2018, in response to the Tribunal’s invitation, the applicants responded, as follows:

    I am writing in response to the decision from AAT about affirm the decision of refusal of nomination application of Man Office (Australia) Pty Ltd.

    I feel the decision made by the member on 12 July 2018 is unfair and injustice. I believe the member has negligently overlooked some documents we provided after the hearing on 2 March 2018. We provided 23 files of documents on 8 March 2018 as evidences to support our application. Unfortunately, from the decision record, it appears the member did not take these documents into consideration, for example, recent payslips were provided as proofs of my current salary level and my submission and documents relating to my answers to superannuation of my salary package, etc.

    Since the decision of nomination has been affirmed by the Tribunal, my comment or response at this stage makes no difference to the Tribunal in relation to my application. We may consider pursuing further legal action when the Tribunal affirms the decision of my application.

17. On the evidence before it, the Tribunal finds that the nomination application has not been approved and as such the primary applicant, Ms Tongwen Li, does not meet cl.187.233(3) of Schedule 2 to the Regulations. Accordingly, cl.187.233 is not met.

18. As the primary applicant is found not to have met the prescribed criteria for a Regional Sponsored Migration Scheme visa, the second, third, and fourth named applicants, Mr Xihui Gou, Mr Yanbo Gou, and Miss Haiyue Gou, as members of her family unit, are therefore also unable to satisfy the criteria for this visa class. The Tribunal therefore finds that as the the second, third, and fourth named applicants, Mr Xihui Gou, Mr Yanbo Gou, and Miss Haiyue Gou, are not members of the family unit of a person who holds a subclass 187 visa, clause 187.311 is not satisfied.

19. As such, the applicants do not meet an essential criterion for the grant of a subclass 187 visa.

20. The applicants have 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

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

    Bridget Cullen
    Member