Liu (Migration)

[2019] AATA 5975

Liu (Migration) [2019] AATA 5975 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Di Liu

CASE NUMBER:  1809561

HOME AFFAIRS REFERENCE(S):          BCC2015/3772108

MEMBER:De-Anne Kelly

DATE:20 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 20 December 2019 at 4:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s position nomination refused – employer deregistered with ASIC – no legal entity to act as applicant in review of refusal of nomination – no jurisdiction for tribunal to review refusal – no approved nomination – decision under review affirmed

LEGISLATION

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

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

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 9 December 2015. 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 Café or Restaurant Manager ANZSCO 141111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the employer nomination lodged by Modern Mediterranean Pty Ltd being the nomination referred to in cl.187.233(1) was refused by a delegate of the Minister.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the review applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

9. 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.

10. 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.

11. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal found they had no jurisdiction in the matter because the company Modern Mediterranean Pty Ltd was de-registered with the Australian Securities and Investment Commission (ASIC) on 19 February 2018 and the legal entity ceased to exist. Therefore, the employer nomination was not approved.

12. On the 5 December 2019, the Tribunal, by email and through the appointed migration agent, wrote to the applicant under s.359A of the Migration Act inviting Ms Di Liu to comment on or respond to the information that there was no approved nomination. The Tribunal advised that if we relied on this information in making a decision, the Tribunal may find that the applicant does not meet cl.187.233(3). To date there has been no response from the applicant. The Tribunal considers it is reasonable to make a decision on this case.

13. Since the Tribunal has found there is no legal entity to act as the applicant in a review and therefore the Tribunal has no jurisdiction to conduct a review of the employer nomination; there is no approved nomination to satisfy cl 187.233(3) and the visa applicant therefore does not meet cl 187.233(3).

14. Therefore, cl.187.233 is not met.

15. 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

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

    De-Anne Kelly
    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.