Liang (Migration)

[2022] AATA 4865

Liang (Migration) [2022] AATA 4865 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lan Liang
Mr Zhixiang Xu
Miss Chujun Xu

REPRESENTATIVE:  Ms Jennifer Kwok (MARN: 0324343)

CASE NUMBER:  1832103

HOME AFFAIRS REFERENCE(S):          BCC2018/618956

MEMBER:P. Maishman

DATE:21 November 2022

PLACE OF DECISION:  Perth

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

Statement made on 21 November 2022 at 2:52pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Marketing Specialist – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 6 February 2018. 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 Marketing Specialist.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because there was no approved nomination related to her application.

6. The applicants appeared before the Tribunal (differently constituted) on 7 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr John Wood, on behalf of the nominator Forbes Partners Pty Ltd.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicants were represented in relation to the review.

9. This matter was originally constituted to Member Michelle East who heard this application and the related application of Forbes Partners Pty Ltd on 7 October 2022. Member East finalised the related Forbes Partners Pty Ltd application on 18 October 2022. Member East became unavailable prior to making a decision in this application. The matter was reconstituted to me to decide on 9 November 2022.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal had before it a copy of the Department’s file.

12. The applicant gave the Tribunal a copy of the delegate’s notice of decision with the application for review. In summary, the delegate refused the visa because the related nomination lodged by Forbes Partners Pty Ltd, being the nomination referred to in paragraph cl 187.233(1), was refused by a delegate of the Minister for Home Affairs on 7 September 2018.  

13. The issue in the present case is whether there is an approved nomination associated with this application.

    Section 359A of the Act

14. On 4 November 2022 the Tribunal wrote to the applicants pursuant to s 359A of the Act. The notice advised the applicants the Tribunal had affirmed a decision of the Department of Home Affairs to refuse the relevant nomination of Forbes Partners Pty Ltd. The notification outlined that cl 187.233(3) required there be an approved nomination in which the first named applicant is the nominee. In respect of the second and third named applicants the notice outlined that cl 187.311 required that they are members of the family unit of a person who holds a subclass 187 visa. The notice advised that if the information was relied on, subject to their comments, the Tribunal may find they do not meet the requirements of the relevant clauses. The notice advised that would be the reason, or part of the reason to affirm the decision under review.

15. The notice invited the applicants to comment or respond to the information or ask the Tribunal for an extension of time in which to provide the comments or response by 18 November 2022. The notice outlined if written comments or a response was not received by the Tribunal within the period allowed the Tribunal may make a decision on the review without taking any further action to obtain views on the information.

16. The Tribunal has not received comments or responses from the applicants or a request to extend the period in which to comment or respond. The Tribunal has proceeded to make its decision on the evidence before it.

    Nomination of a position

17. 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.

18. 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 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.

19. On 20 September 2018 Forbes Partners Pty Ltd applied to the Tribunal (AAT No. 1827562) for a review of the decision of the delegate on 7 September 2018 to refuse its nomination application. On 18 October 2022 the Tribunal (differently constituted) affirmed the decision of the delegate to refuse the nomination application.     

20. The Tribunal wrote to the applicants on 4 November 2022 pursuant to s 359A of the Act, inviting them to comment or respond in writing to the information that, relevantly, there was not an approved nomination related to the visa application by 18 November 2022 and that the second and third named applicants were not members of the family unit of a person who holds a subclass 187 visa. The details of that invitation are recorded above.

21. The applicants did not comment or respond to the notice.

22. The Tribunal finds, on the facts, the nomination by Forbes Partners Pty Ltd, being the application referred to in cl 187.233(1) for the nominated position of Marketing Specialist has not been approved.

23. Accordingly, the requirements of cl 187.233(3) are not met.

24. Therefore, cl 187.233 is not met.

25. The second and third named applicants have made no claim that they meet the primary criteria for the visa and their applications are made on the basis of being members of the family unit of the first named applicant. As the first named applicant is not the holder of a subclass 187 visa the second and third named applicants cannot satisfy cl 187.311.

26. 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

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

    P. Maishman
    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.