Lian (Migration)

[2019] AATA 3134

Lian (Migration) [2019] AATA 3134 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Chuchu Lian
Mr Zhipeng Zhang

CASE NUMBER:  1903603

HOME AFFAIRS REFERENCE(S):          BCC2017/2251145

MEMBER:Katie Malyon

DATE:8 May 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction in relation to the second named applicant.

Statement made on 08 May 2019 at 9:22 am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant – nomination not approved – nominating employer not lodged review application – allegation of fraudulent conduct of migration agent – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994, Schedule 2, cl 187.233(3)

CASES

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 26 June 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 - Chinese national Mrs Chuchu Lian - is seeking the visa in Direct Entry stream, to work in the nominated position of Accountant.

5. The delegate refused to grant the visas on the basis Mrs Lian did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application made by her prospective employer, Bridgeview Motel Management Pty Ltd (the Company), was refused by the Department.

   Background

6. Mrs Lian was nominated to fill the position of Accountant by the Company for its business located on the Central Coast of NSW.  The Company’s nomination was refused by the Department on 18 December 2018.  As a result, the Department refused the applicants’ Subclass 187 visa application.  The Company did not seek review of the delegate’s refusal of its nomination.

7. Accordingly, on 29 March 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 187 visa application. The applicants were informed the Company had not lodged a review application with the Tribunal in respect of the delegate’s decision to refuse its nomination of the position of Accountant for Mrs Lian. As a result, there is no approved nomination by the Company in relation to either of the applicants. In the circumstances, their Subclass 187 visa application could not meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. Mrs Lian responded to the Tribunal’s s.359A letter with an explanation of the situation that she faces arising, she says, from issues with her previous migration agent, Mr Do An, who worked with Goldman Pintex Management Pty Ltd (Goldman Pintex).  She provided the Tribunal with a range of documents in support of her claims that Goldman Pintex provided fraudulent services through its illegal operation.  The documents included a copy of her signed Services Contract for HR Management, Job Search, Migration Consulting for ENS, RSMS - PR, 457 visa with Goldman Pintex dated 14 June 2017 (the Services Contract). 

9. The Services Contract sets out Mrs Lian’s agreement to pay Departmental filing fees plus either $55,000 for professional services to obtain a Subclass 407 or Subclass 457 visa or, in the alternative and relevant to the circumstances of this case, a total of $70,000 for a Subclass 186 or Subclass 187 visa.  The Services Contract provides that monies are payable as follows:

   1)$20,000 upon signing the agreement;

   2)$20,000 upon obtaining an employment contract, lodgement of 457 or 407 Visa or ENS or RSMS;

   3)$15,000 upon receipt of approval for 407 Visa or 457 Visa, Nomination approval (for ENS) or RCB Approval (for RSMS); and,

   4)$15,000 upon receipt of approval for PR for RSMS or ENS PR or similar.

10. Mrs Lian also provided evidence of her attempts to contact Goldman Pintex following receipt by her of the Department’s Invitation to comment on information for a Regional Employer Nomination (Subclass 187) visa dated 18 December 2018 which confirmed it had refused the Company’s nomination.  This evidence includes screenshots of email communications and text messages with Mr Do An, her main contact person at Goldman Pintex, downloaded from her mobile telephone.

11. Further, Mrs Lian has also provided a summary of her attempts to have a conversation with Ted, the General Manager of Goldman Pintex, following receipt of the Tribunal’s s.359A letter. Her multiple attempts to phone the office were unsuccessful. Then, on 8 April 2019 and after many missed calls, Ted blocked her calls on social media WeChat. Mrs Lian states that she left a final message for Ted noting that she would take him ‘and his company to the ACCC for a refund as his services are poor, seems to be fraud (sic) and illegal under Australian Consumer Law and Company Law’. Then, 2 days later on 10 April 2019, Ted sent her a message to inform her that he ‘does not do migration services anymore’. Screenshots of these communications downloaded from Mrs Lina’s mobile phone were also provided to the Tribunal.

    Hearing

12. Mrs Lian appeared before the Tribunal on 2 May 2019 to give evidence and present arguments.

13. At the commencement of the hearing, the Tribunal acknowledged receipt of documentation provided by Mrs Lian.  It also noted that it has no discretion and must apply the law for the reasons outlined in Singh’s case referred to in its s.359A letter. Mrs Lian indicated her acknowledgement of the Tribunal’s observations in this regard and that, in the circumstances, she accepted the Tribunal would affirm the decision of the delegate as there is no approved nomination linked to her Subclass 187 visa application. She told the Tribunal that she paid $40,000 to Goldman Pintex.

14. Mrs Lian then echoed the evidence provided in her submission in response to the Tribunal’s s.359A letter. The Tribunal noted her substantial evidence provided in support of her claims. Mrs Lian told the Tribunal that she did not go for an interview with the Company because, based on advice from Goldman Pintex, her CV was strong and she did not need to work for the Company before it offered her employment for the purposes of nominating her for a Direct Entry stream visa. She added that her brother also used the services of Goldman Pintex - in his case for a Subclass 407 Training visa - which was recently refused.

15. Further, Mrs Lian told the Tribunal that she has already lodged a complaint with the Office of Migration Agents Registration Authority (OMARA) and has been referred by the OMARA to the NSW Department of Fair Trading.  She is proceeding with the OMARA complaint and is yet to pursue a complaint about Goldman Pintex‘s conduct with NSW Fair Trading. 

16. In response to Mrs Lian’s evidence of what appears to be a visa scam, the Tribunal provided her with contact details for the Australian Competition & Consumer Commission (ACCC).  It also provided her with a copy of its brochure Immigration Assistance which contains information about where she can seek advice from pro bono service providers regarding her visa options to remain in Australia and pursue complaints to both the NSW Department of Fair Trading and the ACCC. 

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

    ISSUE

18. The issue in the present case is whether there is an approved nomination in respect of the applicants.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

19. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in the Attachment to this decision.  Essentially, it requires that the position to which the application relates must 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.  

20. 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 (emphasis added);

    ·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.

21. As noted above, the Company’s nomination was refused by the Department and it did not seek review to the Tribunal of that refusal.

22. Therefore, the Tribunal finds that cl.187.233 of Schedule 2 to the Regulations is not met by Mrs Lian.

23. Mrs Lian 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 stream.  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.

24. As discussed with Mrs Lian at the hearing, the Tribunal has no jurisdiction in relation the second named applicant, her husband Mr Zhipeng Zhang, as he was not in Australia at the time of lodgement of the visa application with the Department or at the time of lodgement of the review application with the Tribunal.  Mrs Lian indicated her understanding of the Tribunal’s position in this regard.  She added that husband has remained in China and continued to work there.

    DECISION

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

26. The Tribunal has no jurisdiction in relation to the second named applicant.

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    Schedule 2 Part 187

    ..

    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.

    oOOo