Li (Migration)

[2024] AATA 2341

Li (Migration) [2024] AATA 2341 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Xiaojie Li
Mr Junxin Christopher Wong
Miss Brianna Luoning Wong
Mr Owen Yining Wong

CASE NUMBER:  2219048

HOME AFFAIRS REFERENCE(S):          BCC2017/1249398

MEMBER:Peter Emmerton

DATE:25 June 2024

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

Statement made on 25 June 2024 at 11:30am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager (General) – no approved nomination – nominator no longer actively and lawfully operating – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 (Cth) (the Act).

2. The applicants applied for the visas on 3 April 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 (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.

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 Retail Manager (General), ANZSCO 142111, Skill level 2.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(5) of Schedule 2 to the Regulations because the nominator was no longer actively and lawfully operating a business in Australia and therefore is unable to provide the nominated position to you for a minimum of 2 years.

6. The applicant appeared before the Tribunal on 25 June 2024 to give evidence and present arguments.

7. The applicants were not represented at the hearing.

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 the present case is whether the nominator linked to the visa is actively and lawfully operating a business in Australia and therefore is able to provide the nominated position to the applicant for a minimum of 2 years.

10. The Tribunal has read and carefully considered all the evidence presented to the Department and the delegate.

11. The Tribunal has read and carefully considered the evidence presented to it prior to the hearing as stated below.

    ·Birth Certificate of child, Carolyn Luochen Wong, Western Australia 11 December 2023

    ·Statements of Xiaojie Li, both dated 14 June 2024

    Nomination of a position

12. 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.

13. 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.

14. The Tribunal notes that on 16 November 2022 information was made known to the Department Immigration associated with the applicant’s application and the sponsoring business CM Operations Pty Ltd (ABN 31 606 234 253).

15. The Department, on 16 November 2022 conducted checks which indicated that the nominator, CM Operations Pty Ltd, was deregistered on 18 May 2022. The Tribunal has confirmed this on the ASIC website. In addition, on 18 March 2022 a “Notice of Proposed Deregistration – Voluntary” was published on the Australian Securities and Investment Commission (ASIC) website stating the following: “ASIC has received an application to deregister the Company under s601AA. ASIC may deregister the Company when two months have passed since publication of this notice. Date of publication: 18 March 2022” The nominator’s business is not registered for GST. This information has likewise been verified by the Tribunal via the ASIC website.

16. The Tribunal has determined that CM Operations Pty Ltd (the nominator linked to this visa) is no longer operating and thus, no longer providing the employment offer in the nomination.

17. The Department contacted the applicant on16 November 2022 and they were provided with the opportunity to comment on this issue. They were invited to respond to the invitation to comment within 28 days after they were taken to have received the letter on 16 November 2022. The Tribunal notes no response was received by the required date and the delegate proceeded to decision on 15 December 2022.

18. The applicant has acknowledged both in her written submission and during the hearing that the original nominating entity, CM Operations Pty Ltd, ABN 31 606 234 253, is no longer operating and she is working for the new entity owned by the same proprietor, APM Operations Pty Ltd, ABN 56 649 914 901. It is accepted by the Tribunal that the role appears ostensibly un-changed and it is the same person owning the business. However, the fact remains that the business name has changed, the ABN has changed, the nominating entity linked to the visa has ceased to operate and is deregistered and is no longer registered for GST. It was explained by the Tribunal that it is not possible to transfer a visa application to a new nominator as stipulated in regulation 187.233(1) and 187.233(2).

19. This was further reinforced by a letter dated 12 December 2022, written in support of the visa applicant, by the Managing Director of APM Operations Pty Ltd, ABN 56 649 914 901, Mr Jimmy Wong. He explained the circumstances leading to the change of business entity which he currently operates after closing the original business entity linked to the visa applicant’s application.

20. The applicant explained during the hearing she is currently was on leave following a back injury and is now on parenting leave following the recent birth of her child. She also stated that her employer is keen for her to return to work as he is unable to find a suitable replacement.

21. The Tribunal has determined based on the information above the nominator is no longer actively and lawfully operating in Australia. It is therefore not possible for the nominator to provide the nominated position to the applicant for the minimum of 2 years. Therefore regulation 187.233(5) is not met and subsequently 187.233 is not met.

22. Therefore, cl 187.233 is not met.

23. 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.

    Secondary applicants – 187.311

24. The Tribunal is not satisfied that clause 187.311 of Schedule 2 of the Migration Regulations is satisfied for the secondary applicants Mr Junxin Christopher Wong, Miss Brianna Luoning Wong, Mr Owen Yining Wong.

25. This clause provides that:

    187.311

    The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)made a combined application with the primary applicant.

    As the secondary 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, clause 187.311 is not satisfied.

    DECISION

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

    Peter Emmerton
    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

    (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.