Luo (Migration)

[2020] AATA 1700

Luo (Migration) [2020] AATA 1700 (2 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Cihua Luo

Mr Qiming Gao

Ms Mia Chuyi Gao

Ms Annabel Xiru Gao

CASE NUMBER:  1908131

HOME AFFAIRS REFERENCE(S):          BCC2017/1294053

MEMBER:  Cathrine Burnett-Wake

DATE:  2 March 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions not to grant the

applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 02 March 2020 at 11:49am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Accountant – nomination was withdrawn– not the subject of an approved nomination –decision under review affirmed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 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 6 April 2017. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant.

5. A copy of the decision record was provided to the Tribunal at the time the review application was lodged. The decision record reflects the delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the associated nomination by Suvarnabhoomi Pty Ltd ATF The trustee for Suvarnabhoomi Discretionary Trust was withdrawn.

6. The applicant appeared before the Tribunal on 3 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent; who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination. Nomination of a position

10. 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.

11. 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

Case Number 1908131  Page 2 of 5

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.

1. At hearing the applicant conceded that the application had been withdrawn by the nominator, although she claims she was not told of the reason why.

2. The Tribunal, pursuant to s.359AA, of the Act provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

3. The particulars of the information were that the Tribunal had accessed the Department’s online systems to establish if she was subject to an approved nomination given the nominator had previously withdrawn the nomination application as outlined in the decision record. Further, that the Department’s systems indicated there was no approved nomination in place for her.

4. It was explained to the applicant that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination. The Tribunal asked the applicant if she required additional time to comment on the information. The applicant requested additional time; the Tribunal agreed and adjourned the hearing. The applicant was participating in a Multiple Applicant Hearing List, so the Tribunal outlined it would hold the hearing for the next applicant, then she could return once that hearing had concluded, which would be in approximately 20 minutes.

5. When the hearing resumed the applicant conceded that there was no nomination. She explained around the time she became aware it was withdrawn by the Department that she had just given birth to her second child and her first child was small 2-3 years old, so she was very busy. She also stated that at the time she had her own business and so did her husband.

6. The applicant explained that because she has two children, and because her husband is running a business it would be difficult for them to return to China as the children would need to adopt to the way of life in China and because her husband’s business will suffer.

7. The applicant requested additional time so she could make contact with the nominator to see if the position was still available. The Tribunal asked if she had been in contact with the nominator at all since they withdrew the nomination at the end of 2018, to which she stated she had not because she had been too busy. The Tribunal did not agree to adjourn the matter any further explaining that the nominator withdrew the position at the end of 2018, and that in its view she had sufficient time to have made contact, notwithstanding this, the nomination had been withdrawn and there was no current approved nomination.

8. The Tribunal explained to the applicant that it was solely determining whether there was an approved nomination and that the information before the Tribunal was there was no approved nomination.

9. Therefore, cl.187.233 is not met.

Case Number 1908131  Page 3 of 5

1. 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.

2. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant a subclass 187 visa to the second named applicants as they do not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they can meet the primary criteria in their own right.

   DECISION

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

   Cathrine Burnett-Wake
   Member

Case Number 1908131  Page 4 of 5

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.

Case Number 1908131  Page 5 of 5