Lu (Migration)

[2019] AATA 989

Lu (Migration) [2019] AATA 989 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yishi Lu
Ms Xinzi Tao

CASE NUMBER:  1617436

DIBP REFERENCE(S):  BCC2016/1036104

MEMBER:Ian Berry

DATE:25 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 25 January 2019 at 1:56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13, Schedule 2, cl 187.233

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 Immigration on 19 October 2016 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 March 2016. The delegate refused to grant the visa on the basis that the applicant’s nominator and its nomination application refused. Therefore r.187.233(3) is not met.

3. The applicants appeared before the Tribunal on 8 December 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream and 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.

6. 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   ·   the nomination has been approved and has not been subsequently withdrawn;

   · 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.

7. On 9 January 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide information and comments, in writing. The Tribunal advised the applicant of its intention to affirm the delegate’s decision on the basis that the applicant did not succeed in having his nominator’s application approved, and on 8 January 2019, the Tribunal refused his nominator’s application.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 23 January 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant provided both information and comments within the prescribed period.  The information and comments were carefully considered by the Tribunal. In essence the applicant acknowledged the nominator’s application been refused and also acknowledged that to without such a nomination is visa application could not succeed. He did provide information about his personal circumstances in the expertise he has built above years and of the need for him now to find another employer who would be willing to sponsor him. He included comments of the difficulties he will experience and having lived in Australia for over eight years and having adapted to the Australian way of life and culture. However, there was not information sufficient for the Tribunal to grant his visa application.

10. Accordingly, the Tribunal must find that cl.187.233(3) is not met, and therefore cl.187.233 is not met as a whole. This means that the applicant does not meet the criteria for a subclass 187 visa.

11. 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

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

    Ian Berry
    Member