Lin (Migration)

[2020] AATA 219

Lin (Migration) [2020] AATA 219 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jingyu Lin
Mrs Weiting Zhang

CASE NUMBER:  1820909

HOME AFFAIRS REFERENCE(S):           BCC2017/3791864

MEMBER:Katie Malyon

DATE:5 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 05 February 2020 at 3:30 pm

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 – nomination application refused – unique or exceptional circumstances – Minister’s guidelines – circumstances leading to refusal of visa application – impact of visa refusal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Singh v MIBP [2017] FCAFC105

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 16 October 2017.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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 criteria of one of 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In the present case, the first named applicant - Chinese national Mr Jingyu Lin - is seeking the visa in the Direct Entry stream to work in the nominated position of Marketing Specialist ANZSCO 225113. 

5. The delegate refused to grant the visas on the basis Mr Lin did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination made by his prospective employer was refused by the Department. A copy of the delegate’s decision was provided to the Tribunal.

   Background

6. Mr Lin was nominated to fill the position of Marketing Specialist by his prospective employer, Rosehill Orchards Pty Ltd ACN 078 286 718 (the Company), a cherry producer based at Young in rural NSW.  The Company’s nomination was refused by the Department on 6 June 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 application.

7. The Tribunal wrote to the applicants via their representative on 28 November 2019 pursuant to s.359A of the Act. In its letter, the Tribunal noted that it is a requirement for grant of a Subclass 187 visa that the nomination for the position identified in the applicants’ visa application has been approved. The Tribunal invited the applicants to provide information in relation to whether the position identified in their visa application is the subject of an approved nomination or, in the alternative, whether there is a pending application for review of a decision to review the nomination. It also noted that, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC105 (Singh’s case), this is a ‘once off’ process.  The Tribunal requested the applicants’ provide any evidence in response to the Tribunal’s letter by 12 December 2019.  On 4 December 2019, the Tribunal received a request for an extension of time to provide the comments or response due to nominee Mr Lin’s overseas travel commitments.  The Tribunal granted an extension of time until 18 December 2019. 

8. On 17 December 2019, the Tribunal received a response to its s.359A letter. The representative provided a submission together with a number of documents including,

   relevantly:

   1)a copy of the delegate’s refusal of the nomination application made by the Company in respect of the position of Marketing Specialist for Mr Lin – the Tribunal notes that, as is common in such matters, the representative acted for both the Company and Mr Lin in relation to respective applications lodged with the Department;

   2)a Statutory Declaration from Mr Lin sworn 17 December 2019; and,

   3)letters from Doctors regarding the medical condition of a Mr Raymond McIntosh – it is Mr McIntosh who made the offer of permanent employment to Mr Lin and who gave instructions to the representative to lodge the Company’s nomination application. 

   During the course of the hearing Mr Lin echoed statements in his Statutory Declaration.  His comments are discussed below.

   Hearing

9. The applicants appeared before the Tribunal on 3 February 2020 to give evidence and present arguments.  The Tribunal took evidence from both Mr Lin and the second named applicant, his wife, Chinese national Mrs Weiting Zhang.  The applicants were represented in relation to the review by their registered migration agent, Mr Allan Griffith of Griffith Holdings & Associates Pty Ltd, who also attended the hearing.

10. At the outset, the Tribunal reiterated information set out in its s.359A letter. It noted that the Company’s nomination application was refused by the Department and that no review of that decision had been sought. As a result, the position to which Mr Lin’s Subclass 187 visa application relates cannot meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations and, following the decision in Singh’s case, this is a ‘once off’ process.[1]  The Tribunal noted it has no discretion and, accordingly, must affirm the decision of the delegate to refuse the applicants’ Subclass 187 visa application.  The applicants acknowledged the Tribunal’s comments. 

    [1] Singh v MIBP [2017] FCAFC 105, Mortimer J at [90]

11. The Tribunal also observed that, in his submission, the representative had posited the question as to whether this is a case which raises ‘exceptional circumstances’ because the applicants have been ‘abandoned by the Company’. The Tribunal confirmed that, under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant if the Minister thinks it is in the public interest to do so. It noted that the Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers (under s.351, s.417 and s.501J of the Act) (the Minister’s Guidelines).[2] 

    [2] >

    By way of summary, the Minister’s Guidelines state the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added). Circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include where:

    ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

12. To enable it to consider whether this is an appropriate case to refer to the Minister consistent with the Minister’s Guidelines, the Tribunal took evidence from the applicants including how they came to apply for a Subclass 187 visa nominated by the Company, the circumstances that lead to refusal of their visa application and the impact of visa refusal for them.

13. The Tribunal noted that, having reviewed the Department’s file and documentation lodged in support of their Subclass 187 visa application, it was clear that an extensive range of documentation had been provided to the Department (Birth Certificates, Marriage Certificate, educational qualifications, IELTS English language test results) and that this contrasts with the nomination application made by the Company. As indicated in the delegate’s decision provided to the Tribunal by the representative, no documentation at all was lodged in support of the Company’s nomination. Further, information provided in the nomination was deficient as no payroll expense was provided despite the Company claiming to employ 13 Australian citizen or permanent resident employees. The delegate refused the Company’s nomination on the basis it did not meet r.5.19(4)(d)(i) of the Regulations because no evidence was provided to demonstrate the business is operating and has the financial capacity to pay the full-time salary for the nominated position for at least 2 years.

14. The Tribunal observed that although the applicants had provided the Department with a range of documentation, conspicuous by its absence from their Subclass 187 visa application, is a copy of the contract of employment made between Mr Lin and the Company.  Asked by the Tribunal whether he had received a contract of employment from the Company in relation to his prospective employment as its Marketing Specialist, Mr Lin requested a short break in the hearing.  After the hearing resumed, Mr Lin told the Tribunal that he received an oral offer of employment (only) from Ray McIntosh.  Questioned about the context in which the offer of employment was made to him, Mr Lin said he had an interview with Mr McIntosh at a restaurant in Sydney: he did not go to Young where the Company’s cherry farm is located.  He was expecting a salary of about $70,000 per annum.

15. Mr Lin told the Tribunal that the Company sells its cherries locally and overseas. The plan, as discussed with Mr McIntosh, was to expand the Company’s business into China using Mr Lin’s marketing qualifications and experience as well as his contacts there. He added that it was his aunt who introduced him to Mr McIntosh: she had previous dealings with Mr McIntosh and had purchased cherries from him for export to China. Mr Lin confirmed he did not get a written offer of employment and, despite the representative following up many times, Mr McIntosh ‘just disappeared’. Subsequently, it emerged that Mr McIntosh became very sick and ended up in hospital where he was treated for prostate cancer. The representative noted evidence provided to the Tribunal in response to its s.359A letter includes signed letters regarding Mr McIntosh’s medical conditions. The Tribunal acknowledges letters provided include an undated letter from Dr Anupam Chaudhuri, Radiation Oncologist with the Riverina Cancer Care Centre to Dr Steven Sowter based in Wagga Wagga and a signed letter dated and 22 June 2018 from Dr Jane Hill, Medical Oncologist addressed to Dr Sowter. The letters confirm Mr McIntosh has suffered from a range of medical conditions since early 2017 including prostate cancer, bilateral shoulder reconstructions as well as several operations to his cervical spine after a traumatic injury from a fall.

16. As set out in Mr Lin’s Statutory Declaration and echoed at the hearing, after Mr McIntosh disappeared, the representative contacted the Company but this was ‘to no avail since they said that this case was entirely the function of Mr McIntosh and the responsibility lay with him and him alone’.  It appears to the Tribunal that Mr McIntosh acted without the authority of the Company. 

17. The Tribunal provided Mr Lin with a copy of an Australian Securities & Investment Commission (ASIC) extract for the Company which confirms that its sole Director and Secretary since mid-2010 is Don Jones.  Mr Jones lives in Young.  Mr Lin confirmed that he did not have an interview with Mr Jones and nor did he have any direct communication with Mr Jones even after difficulties were experienced locating Mr McIntosh: rather, he only met Mr McIntosh.  He added it was the representative who helped him and who contacted the Company direct.  Asked if he knew of Mr McIntosh’s position title or role with the Company, Mr Lin said he was not sure but believed it might be Business Development Manager.  The Tribunal observed that the circumstances outlined at the hearing together with the fact that the Company’s nomination and the applicants’ Subclass 187 visa application were lodged just a week before Mr Lin’s Subclass 485 Skilled Graduate visa expired on 21 October 2017 raised doubts in the mind of the Tribunal as to whether this was a visa scam:  it asked Mr Lin if he had paid Mr McIntosh any money.  He responded that no money was paid to Mr McIntosh, or anyone else, for the Company to lodge its nomination. 

18. The representative confirmed that he had no reason to doubt Mr McIntosh would provide requested documentation to lodge in support the Company’s nomination application because, as a solicitor, he has had multiple dealings with Mr McIntosh over the past 15 years.  He added that, only on one occasion in the past, had Mr McIntosh’s failure to provide documentation been a problem: this had been when Mr McIntosh’s wife died.  The Tribunal noted that the Department’s decision in relation to the nomination provided by the representative confirms that the Company’s nomination was refused because no documentation whatsoever was lodged in support of the application.  The representative confirmed all documentation was supposed to be forthcoming but Mr McIntosh got sick and so nothing was provided.  He opined that what has happened to Mr Lin and his wife is not their fault.

19. Asked about the impact refusal of their Subclass 187 visa applications would have on the applicants, Mr Lin said the effect would be terrible.  Despite graduating with a Bachelor of Business from Monash University in June 2015 and then holding a Subclass 485 Graduate Skilled visa, Mr Lin said it has been difficult for him to find a full-time job because employers look for people who have permanent residence: they don’t want to sponsor foreign nationals.  He added that his life plan has, basically, been destroyed because he now can’t find a permanent job and, as such, won’t be able to look to buy a nice house or have children here. 

20. Mrs Zhang told the Tribunal that she is currently working as an Accountant with a Chinese advertising media group, Chinese Newspaper Group Pty Ltd.[3]  Documentation lodged with the Department confirms that Mrs Zhang has completed a Bachelor of Commerce (Accounting & Finance) at the University of Queensland in November 2014 and, subsequently, a Master of Professional Accounting at the University of Sydney in November 2016.  In response to the Tribunal’s question as to whether she has explored her own visa pathways (skilled independent or employer nominated), Mrs Zhang said that she has not considered a sponsorship or nomination by her employer because her husband, Mr Lin, was doing that: she has relied on him.  In addition, Mrs Zhang said she personally has suffered to date because she had difficulty securing a Bridging B visa to allow her to return to China to see her terminally ill grandmother: it was her grandmother who raised her but, because of the delay in grant of the Bridging B visa, she did not get to see her grandmother before she died. 

    [3] Information available online indicates that Chinese Newspaper Group Pty Ltd is the largest privately owned and operated Chinese media organisation in Australia.  Established over 30 years ago, it has focused on providing the Chinese community in Australia with comprehensive local, national and world-wide news.  It produces 10 publications covering Sydney, Melbourne and Brisbane as well as operating digital News, Real Estate and Job websites.  Publications include: Daily Chinese Herald, Chinese Sydney Daily and Chinese Herald Property Weekly in Sydney; Chinese Melbourne Daily, Melbourne Weekender and Chinese Melbourne Property Weekly in Melbourne; and, Queensland Chinese Times as well as Queensland Chinese Property Weekly in Brisbane:  >

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether either of the applicants is the subject of an approved nomination as required by cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

22. Clause 187.233 of Schedule 2 to the Regulations as applicable in this case is set out in full in the Attachment to this decision. Essentially, it requires that that the position to which the visa 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 Subclass 187 visa application and is required by paragraph 1114C(3)(d) of Schedule 1 to the Regulations for the purposes of making a valid visa application.

23. In addition, cl.187.233 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 6 months after the nomination of the position was approved.

24. As noted above, the Company’s nomination was refused by the Department on 6 June 2018, it did not seek review of the delegate’s decision to refuse its nomination and, as a result, the position to which Mr Lin’s Subclass 187 visa application relates cannot meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. As set out in its s.359A letter and as discussed by the Tribunal during the hearing, following the decision in Singh’s case, this is a ‘once off’ process.[4].  The applicants acknowledged the Tribunal’s position in this regard. 

    [4] Singh v MIBP [2017] FCAFC 105, Mortimer J at [90]

25. In the circumstances of this case, as the Company’s nomination for the position of Marketing Specialist to which Mr Lin’s Subclass 187 visa application relates has not been approved, it follows that he does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

26. Mr Lin 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, the Temporary Residence Transition 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.

27. As Mr Lin does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second named applicant, Mrs Zhang, cannot satisfy the secondary criteria for the grant of the visa.  Further, there is no evidence before the Tribunal to indicate that Mrs Zhang meets the primary criteria for grant of the visa.  Accordingly, the Department’s decision to refuse Mrs Zhang’s application must also be affirmed.

    Is this an appropriate case to refer to the Minister?

28. The Tribunal acknowledge as the representative’s request to refer the matter to the Minister. It has considered not only the Minister’s Guidelines referred to above but also cl.16.1 – cl.16.5 of the Tribunal President’s Direction Conducting Migration and Refugee Reviews[5] as to whether this is an appropriate case to refer to the Minister.

    [5] type="1">

29. It appears to the Tribunal that the applicants’ case does not fall within the Minister’s Guidelines. The representative confirmed at the hearing that he contacted the Company for assistance in collating documentation to support the nomination after Mr McIntosh failed to return his calls. However, as confirmed by his submission lodged with the Tribunal in response to its s.359A letter and Mr Lin’s evidence referred to above at para [17], the representative’s efforts in this regard were to no avail. In this regard, the Tribunal notes the absence of any web presence of the Company and, further, the ASIC search referred to above at para [18] indicates the Company does not have an Australian Business Number, indicating that its revenue does not exceed $75,000 per annum.[6]

    [6] >

    In the circumstances, the Tribunal has decided not to refer the applicants’ case to the Minister. However, it remains open to the applicants to make a request to the Minister directly pursuant to s.351 of the Act to intervene, if they believe that their case falls within the ‘appropriate to consider’ guidelines, and/or they believe that they have any other unique and/or compelling circumstances that would warrant the Minister’s intervention.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    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.

    oOOo