Li (Migration) - [2023] AATA 2081

Li (Migration) [2023] AATA 2081 (3 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Na Li
Mr Qi Zhang
Master Jianshu Zhang
Master Ruishu Zhang
CASE NUMBER:  1917916
HOME AFFAIRS REFERENCE(S):          BCC2018/4012193
MEMBER:Jade Murphy
DATE:3 July 2023
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 3 July 2023 at 11:32am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Accountant (General) – no approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13
CASES
Singh v MIBP [2017] FCAFC 67
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 29 June 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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 Accountant (General) (ANZSCO 221111).
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 lodged by the sponsor, The Trustee for BMA Unit Trust, was refused by the Department, as such, there was no approved nomination.
On 24 April 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were set out as follows:
·On 29 June 2018, The Trustee for BMA Unit Trust (“the nominator”) applied to the Department of Home Affairs (“the Department”) to nominate the appciant for the position of ‘Accountant (General)’ (ANZSCO 221111).
·On 15 May 2019, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for merits review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Li (Migration)

Details

AGLC: Li (Migration) [2023] AATA 2081
Case: [2023] AATA 2081
Decision Date: 3 July 2023

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The applicant sought to have a decision affirmed by the Tribunal, which had refused to grant the visa. The core of the dispute revolved around whether the nominated position met the requirements of the relevant migration regulations.

The Tribunal was required to determine whether the position to which the visa application related was the subject of an approved nomination, as stipulated by clause 187.233 of the Migration Regulations. This clause, as applicable, required the position to be located in regional Australia, identified in the nomination application, and that the nominator be the prospective employer. Further, the nomination must have been approved and not subsequently withdrawn, with no adverse information known to Immigration, the position remaining available, and the visa application lodged within six months of the nomination's approval.

The Tribunal found that the nomination lodged by The Trustee for BMA Unit Trust was refused on 15 May 2019. Although an application for review of this refusal was lodged with the Tribunal, that review application was subsequently withdrawn by the nominator on 25 July 2022. Consequently, the nomination application for the position specified in the visa application had not been approved. As the essential criterion of an approved nomination under cl 187.233 was not met, and the applicant had not sought to satisfy the criteria for any other visa stream, the Tribunal concluded that the decision under review should be affirmed. The Tribunal affirmed the decision not to grant the applicant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.Nomination of a position Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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. In addition, this criterion also requires that:·the person who will employ the applicant is the person who made the 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. On 15 May 2019, the nomination lodged by The Trustee for BMA Unit Trust, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister of Home Affairs. On 4 June 2019, The Trustee for BMA Unit Trust, lodged an application for review with the Tribunal. On 25 July 2022, the Tribunal decided it did not have jurisdiction to consider the matter because the nominator had withdrawn its application for review. This means that the nomination application relating to the position specified in the visa application has not been approved. As the nomination (the one referred to in paragraph 187.233(1)) has not been approved the Tribunal finds that the position to which the application relates is not the subject of an approved nomination. Therefore, cl 187.233 is not met. 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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Jade MurphyMemberATTACHMENT A187.233(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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Jade MurphyMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

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