Lu (Migration)

[2017] AATA 2488

Lu (Migration) [2017] AATA 2488 (23 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yongxin Lu
Mrs Hong Yan

CASE NUMBER:  1615575

DIBP REFERENCE(S):  BCC2015/3090649

MEMBER:Antoinette Younes

DATE:23 November 2017

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 23 November 2017 at 5:08pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position – Retail Manager –Nomination refused

LEGISLATION
Migration Act 1958 s 65, 375A
Migration Regulations 1994 rr 1.13A ,1.13B, 5.19(4) , 5.19(4)(a)(ii), 5.19(4)(h)(ii) Schedule 2 cls 187.233, 187.233(1), 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 Immigration 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 to the Department of Immigration for the visas on 22 October 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Retail Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the Minister did not approve the nomination.

6. The applicants appeared before the Tribunal on 22 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr M Coskun.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicants were represented in relation to the review by their 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 cl.187.233.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

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. The Tribunal received from the applicant AAT decisions relating to cl.186.223.  The Tribunal does not consider those decisions to be binding or relevant to this case – they relate to different set of facts.

12. In the course of the hearing, the Tribunal indicated to the applicant that in the delegate’s decision record provided by the applicant to the Tribunal in support of the application for review, it is noted that the nomination lodged by SKQ Investments Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by the delegate. The Tribunal indicated that this means that as the nomination had been refused, the applicant does not meet cl.187.233(3) which requires the nomination to be approved.  The applicant said that there is now a new nomination.  The Tribunal indicated that would not assist because the approved nomination must be the one referred to in the visa application and about which the applicant made the declaration.

13. The second-named applicant gave evidence that their advisor told them about other applicants who were granted their visas.  Mr Coskun, who is the applicant’s employer, gave evidence about the need for the position and for the applicant.  He referred to the new nomination.  The Tribunal explained that the approved nomination must be the one referred to in the visa application made by the applicant and about which the applicant made the declaration.

14. The Tribunal advised the applicant of the existence of the s.375A non-disclosure certificate placed on the Departmental file. The Tribunal advised that it considered the certificate to be valid but there is no information subject to the certificate which the Tribunal considered adverse to the applicant.

15. The Tribunal has considered the evidence carefully and has given regard to the submissions and oral evidence.  On the basis of the available information, the Tribunal finds that as the nomination has been refused, the applicant does not meet cl.187.233(3) which requires the nomination to be approved. Therefore, the applicant does not meet cl.187.233.

16. 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.

17. In relation to the second-named applicant, as the applicant has not met cl.187.233, the second-named applicant does not meet cl.187.311.

    DECISION

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

    Antoinette Younes

    
    Senior Member