Li (Migration) - [2022] AATA 3470

Li (Migration) [2022] AATA 3470 (7 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zhenghao Li
REPRESENTATIVE:  Mr Hang Chen (MARN: 0854662)
CASE NUMBER:  1917057
HOME AFFAIRS REFERENCE(S):          BCC2017/4315105
MEMBER:Jade Murphy
DATE:7 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 07 September 2022 at 4:17pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Massage Therapist – 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 November 2017. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Massage Therapist (ANZSCO 411611).
The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations. The delegate found that the nomination referred to in cl.187.233(1) was refused by a delegate for the Minister on 27 May 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.
On 23 August 2022, the Tribunal wrote to the applicant 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 that nominator sought a review of the decision to refuse the nomination application, but it was recently affirmed by the Tribunal on 22 August 2022. This means that the nominator’s application for the nominated position has not been approved.
It was explained in the letter to the applicant that this information is…

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) [2022] AATA 3470
Case: [2022] AATA 3470
Decision Date: 7 September 2022

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, for the position of Massage Therapist. The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Jade Murphy, was required to determine whether the applicant had satisfied the criteria for the visa.

The central legal issue before the Tribunal was whether the nominated position was the subject of an approved nomination, as required by clause 187.233 of the Migration Regulations 1994. This clause, as applicable, stipulated several conditions, including that the nomination must have been approved and not subsequently withdrawn, and that the applicant must be identified in the nomination if made after 1 July 2017. The Tribunal also considered whether there was adverse information known to Immigration, whether the position remained available, and the timeframe between nomination approval and visa application.

The Tribunal found that the nomination lodged by PYU Marion Pty Ltd was refused by a delegate of the Minister on 27 May 2019. Although PYU Marion Pty Ltd sought review of this decision, the Tribunal affirmed the delegate's refusal on 22 August 2022. Consequently, the nominator's application for the nominated position had not been approved. As the applicant did not respond to the Tribunal's invitation to comment on this critical issue, the Tribunal concluded that the relevant nomination had not been approved, and therefore, clause 187.233 was not met.

Given that the applicant had only sought to satisfy the criteria for the Subclass 187 visa in the Direct Entry stream and had failed to meet the essential requirements, the Tribunal affirmed the decision under review. The Tribunal ordered that the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa be affirmed.

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 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 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 27 May 2019, the nomination lodged by PYU Marion Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister. PYU Marion Pty Ltd lodged an application for Tribunal review on 6 June 2019. On 22 August 2022, the Tribunal decided to affirm the delegate’s decision to refuse the employer nomination. As discussed above, on 23 August 2022, the Tribunal wrote to the applicant and invited him to comment on or respond to certain information which it considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. Particularly, that the application for approval of the nominated position made by PYU Marion Pty Ltd was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal. This means the nominator’s application for the nominated position has not been approved. The applicant did not respond to the above information. The only information before the Tribunal in this matter is that the relevant nomination has been refused and affirmed on review. As a result, 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

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa.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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