Li (Migration)

[2021] AATA 541

Li (Migration) [2021] AATA 541 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yanshen Li
Miss Siyu Deng

CASE NUMBER:  1917176

HOME AFFAIRS REFERENCE(S):          BCC2017/3115054

MEMBER:Alison Mercer

DATE:2 March 2021

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 2 March 2021 at 2:47pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – related nomination applicant refused and no application for review – currently working for new employer – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASES

Hasan v MIBP [2016] FCCA 1049

Kaur v MIBP [2017] FCCA 564

Singh v MIBP [2016] FCCA 2229

Singh v MIBP [2017] FCAFC 105

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 (the Act).

2. The applicants applied for the visas on 29 August 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 (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 Direct Entry stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination by the applicant’s employer, Nick’s Corner Pty Ltd, was refused on 9 May 2019, and therefore the applicant did not meet cl.187.233(3) and did not meet cl.187.233 as a whole. The delegate further found that the applicant had not made any claims against any other stream except the Direct Entry stream. The delegate also refused to grant the second named applicant (the applicant’s partner) a subclass 187 visa as she did not meet the secondary visa criteria in cl.187.311 to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 28 June 2019. It was accompanied by a copy of the delegate’s decision.

7. On 9 October 2020, the Tribunal wrote to the applicants via their agent to invite them to a hearing to be held by telephone on 27 November 2020.

8. On 13 October 2020, the Tribunal received a request for postponement of the hearing, on the basis that the applicants had appointed a new migration agent, Li Qin, who needed time to assess the case.  

9. On 16 October 2020, the Tribunal wrote to the applicants via their agent to advise that the Presiding Member had considered their request for a hearing postponement on the basis that the applicants had recently been appointed, but considered that as the hearing was not until 27 November 2020, that allowed sufficient time to prepare, particularly since the legal criterion in dispute was confined (being cl.187.233(3), which requires that the applicant was the subject of an approved nomination by his original nominating employer, Nick’s Corner Pty Ltd). The Tribunal advised that they were also free to request additional time after the hearing to make post-hearing submissions, if they believed they had relevant information that was not available by 27 November 2020. The Tribunal advised that the hearing would take place via teleconference as scheduled on 27 November 2020

10. The first named applicant appeared before the Tribunal by telephone on 27 November 2020 to give evidence and present arguments. The Tribunal also received oral submissions via telephone from the applicant’s agent.

11. The Tribunal exercised its discretion to hold the hearing by telephone as it was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants, particularly since the applicants are located in Queensland and the presiding Member in Victoria. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

12. The applicant confirmed that he was nominated as a Café or Restaurant Manager in August 2017 and that he understood that his and his partner’s visas had been refused due to the refusal of the employer’s nomination by the Department.

13. Pursuant to s.359AA of the Act, the Tribunal put to the applicant particulars of information it held, namely that although Nick’s Corner Pty Ltd had not sought review of the decision to refuse its nomination at the Tribunal and the timeframe in which it could do so had expired. The Tribunal advised the applicant that this information was relevant to the decisions under review, as cl.187.233(3) required that he was the subject of an approved nomination by Nick’s Corner Pty Ltd (and not by a new employer and/or with a new nomination). It noted that if it relied on this information, it would have to find that he did not meet cl.187.233 and therefore could not be granted a subclass 187 visa (and nor could the member of his family unit who were included in his application). The Tribunal advised that this would be the reason (or part of the reason) to affirm the decisions under review. The Tribunal asked the applicant if he wished to comment on, or respond to, this information, and if so, whether he wished to do so immediately or whether he wished to ask for more time to do so.

14. The applicant elected to respond immediately, telling the Tribunal that he did ask his former employers to lodge a review application about the nomination refusal but did not know whether they had done so or not, as he did not know what happened on their side of things. He told the Tribunal that he had found a new employer and was working for them on the Gold Coast as a Café or Restaurant Manager. However, it was early days in this employment, and he had not broached with them whether they would sponsor or nominate him for a visa.

15. The applicant’s agent said that she had only found out recently that the applicant’s employer did not appeal the refusal of its original nomination. She noted that it had made a second nomination in June 2019, but this was also refused by the Department. The applicant’s agent said that they were considering whether the applicant could apply for a subclass 491 visa now that he had achieved the required English proficiency scores and had 2 years of work experience in Australia.

16. The Tribunal indicated that it could not defer its decision indefinitely on the basis that the applicants may have other options, but estimated that it would make its decision in 4 to 8 weeks.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

18. 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.

19. 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.

20. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), the nomination of him by Nick’s Corner Pty Ltd, was refused by the Department on 9 May 2019.

21. As discussed with the applicant, Nick’s Corner Pty Ltd did not seek review of that refusal decision with the Tribunal.

22. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer.

23. The Tribunal further notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

24. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

25. Although the Court’s comments were, strictly speaking, obiter, they are nonetheless persuasive in relation to subclass 187 visas in both the TRT and DE streams. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.187.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.  There is no longer a nomination review pending in this case.

26. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version.  While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as would be the case here if a new employer was to lodge a nomination of the applicant.

27. Accordingly, the Tribunal finds that the applicant cannot meet cl.187.233(3) and thus cannot meet cl.187.233 as a whole.

28. 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.

29. The Tribunal must also affirm the decision to refuse to grant a subclass 187 visa to the second named applicant, as it finds that she does not satisfy the secondary visa criteria to be a member of the family unit of a person who met the primary visa criteria, and there is no evidence to suggest that she meets the primary visa criteria in her own right.

    DECISION

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

    Alison Mercer
    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.