LI (Migration)

LI (Migration) [2021] AATA 4981 (27 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs QIN LI
Mr ZHIQIANG LIU
Miss YULING LIU
Miss YUXUAN LIU
CASE NUMBER:  1900473
HOME AFFAIRS REFERENCE(S):          BCC2017/2444384
MEMBER:Peter Emmerton
DATE:27 October 2021
PLACE OF DECISION:  Adelaide

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

Statement made on 27 October 2021 at 10:24am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Importer or Exporter – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311
CASES
Hasran v MIAC [2010] FCAFC 40
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 10 July 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Importer or Exporter, ANZSCO 133311, Skill level 1.
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 was not approved.
The applicants appeared before the Tribunal, on 12 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Michael Fillipidis, the Director of the nominating entity, Export Business Connect Pty Ltd. This was combined with the hearing for MRT file ref 1834320, the nominator.
The applicants were represented in relation to the review by their registered migration agent.
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 nomination has been approved.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.
On 21 March 2017, the applicant’s sponsoring employer, Export Business Connect Pty Ltd applied for approval for a nomination for the position of Importer or Exporter, ANZSCO 133311. Ms Qin Li is the nominee for the position. On 9 November 2018 the Department refused the nomination application. In a separate decision, the Department subsequently refused Ms Li’s subclass 187 visa application on 31 December 2018, because the applicant did not meet cl.187.233 of Schedule 2 to the to the regulations.
The Tribunal affirmed the original decision on 12 October 2021, (file reference 1834320, Export Business Connect Pty Ltd), therefore the decision by the department to refuse the employer nomination on 9 November 2018 stands. Subsequently, there can be no valid employer nomination.
On 12 October 2021 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised the following.
Dear Mrs LI, Mr LIU, Miss LIU and Miss LIU
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MRS QIN LI, MR ZHIQIANG LIU, MISS YUXUAN LIU AND MISS YULING LIU
I am writing on instruction from the Member conducting your review, in relation to the
applications for review made by you in respect of decisions to refuse to grant
Regional Employer Nomination (Permanent) visas.
In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response, be the reason, or a part of the reason, for affirming the
decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
- The application for approval of the nominated position made by Export Business
Connect PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
The information should be received by 26 October 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 26 October 2021, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us before 26 October 2021 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’
The Tribunal is satisfied that the letter was delivered to the specified registered migration agent’s email address.
The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
Nomination of a position
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).
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.
The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position at the time of this decision is not approved. The Tribunal finds the applicant is unable to satisfy cl.187.233(3).
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.
Secondary Applicants
The Tribunal has determined that the secondary applicants, Mr Zhiqiang Liu, Miss Yuling Liu and Miss Yuxuan Liu are not members of a family unit of a primary applicant who holds a Subclass 187 visa granted on the basis of having satisfied the primary criteria for a Subclass 187 visa.
The secondary applicants therefore do not meet cl.187.311
The secondary 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, as a secondary applicant have not been met, the decision under review must be affirmed.
DECISION
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.

[2021] AATA 4981

27 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Natural Justice