Li (Migration)

[2020] AATA 454

Li (Migration) [2020] AATA 454 (20 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jingran Li

CASE NUMBER:  1801816

HOME AFFAIRS REFERENCE(S):          BCC2017/3918207

MEMBER:Amanda Mendes Da Costa

DATE:20 January 2020

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 20 January 2020 at 3:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – nomination refused – did not respond to Tribunal’s correspondence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359, 360(3), 363A
Migration Regulations 1994 (Cth), rr 1.13, 5.19, Schedule 2, cl 187.223

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 October 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager ANZSCO 142111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations as the applicant did not have an approved nomination for the position of Retail Manager.

6. The applicant appeared before the Tribunal on 13 August 2019 to give evidence and present arguments. The hearing was held as a combined hearing with the case of the nominator, The Trustee for the H & J Holdings Pty Ltd.  Mr Xingdi (Alan) Jin, a director of the company also gave oral evidence.  The hearing was conducted with the assistance of an interpreter in the mandarin and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

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 applicant has an approved nomination for the position associated with his visa application.

   Nomination of a position

10. 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.

11. 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.

12. The Trustee for the H & J Family Holdings Pty Ltd lodged an application for the approval of a nomination on 24 January 2017, identifying the applicant as the nominee for the occupation of Retail Manager ANZSCO 142111.

13. On 18 December 2019 the nomination application of The Trustee for the H & J Family Holdings Pty Ltd was refused by a delegate of the delegate to the Department.  The sponsor subsequently made an application to the Tribunal for review of this decision.  On 14 November 2019 the Tribunal affirmed the decision of the delegate in refusing the nomination application.

14. On 11 December 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting them to comment on or respond to information that it considered would be part of the reason for affirming the decision under review.  That information was that the Tribunal had affirmed the decision of the delegate in refusing the nomination application of The Trustee for the H & J Family Holdings Pty Ltd.

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 27 December 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The applicant has not provided the comments or response within the prescribed period and no extension has been granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an 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 decision without taking further steps to obtain the comments or response.

17. Given that if a nomination of an occupation in association with the visa application has not been approved under s.140GB of the Act, the Tribunal finds that the requirements of cl.187.223 are not met.

18. 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

19. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Amanda Mendes Da Costa
    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

    (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.