Ma (Migration)

[2020] AATA 6173

Ma (Migration) [2020] AATA 6173 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kaiyimin Ma

CASE NUMBER:  1925948

HOME AFFAIRS REFERENCE(S):          BCC2017/1314728

MEMBER:Phoebe Dunn

DATE:26 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2020 at 10:43am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved nomination – related nomination application refused and no jurisdiction for tribunal to review – business deregistered and position not still available – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A,
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), (5)

CASE
Hasran v MIAC [2010] FCAFC 40

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 (Cth) (the Act).

2. The applicant applied for the visa on 7 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

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 related nomination application by Hospitality Future Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1) (the nomination), was refused by a delegate of the Minister on 25 July 2019 and as such there was no approved nomination.

6. On 7 August 2019, the nominator lodged an application to review the decision to refuse the nomination application to the Tribunal.  On 12 February 2020, the Tribunal determined it had no jurisdiction to review the decision as the nominating business had been deregistered and as such had ceased to exist as a legal entity.

7. By letter dated 19 October 2020, the Tribunal wrote to the applicant in accordance with the requirements of s.359A of the Act, inviting the applicant to comment on or respond to information the Tribunal considered was adverse to the applicant’s case.  The Tribunal provided particulars of the adverse information, explained the relevance of it and the consequences of the Tribunal relying on the information in reaching its decision, as follows:

   • On 12 February 2020 the Tribunal found that the Tribunal does not have jurisdiction to review the nomination refusal, because the nominating business had been deregistered and had ceased to exist as a legal entity.
   • This means that the nomination has not been approved as required under cl.187.233(3) of the Regulations and that the position is not still available to the applicant as required under cl.187.233(5) of the Regulations.

8. In its letter the Tribunal explained that the information was relevant to the review because it is a requirement for the grant of the Subclass 187 visa that the nomination identified in the Subclass 187 visa application nominating the applicant to work in the nominated position has been approved and that the position is still available to the applicant. The Tribunal explained further that if the Tribunal relied on this information in making its decision, the Tribunal may find that the applicant is not the subject of an approved nomination as required in cl.187.233(3) and that the position is not still available to the applicant as required in cl.187.233(5) and that this would mean that the applicant does not satisfy a requirement for the grant of the visa.  The Tribunal invited the applicant to comment on or respond to the information by 2 November 2020 or seek an extension of time within which to do so.  The Tribunal noted that if the applicant did not respond within the stipulated date or as extended, the Tribunal may make a decision on the review without taking further steps to obtain any comment or response 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 Tribunal did not respond to the Tribunal’s letter and no request for an extension of time to do so was received.

10. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. By letter dated 9 November 2020, the Tribunal again wrote to the applicant noting that as the applicant had failed to respond to its earlier letter and no request for an extension of time to do so was received, he had lost his right to appear before the Tribunal to give evidence and present arguments.  The Tribunal advised that it would not make a decision on the matter until 23 November 2020 at the earliest, and advised the applicant that he may provide any information or documents that he believed would support his case, including commenting on or responding to the information the applicant was invited to comment on or respond to in the Tribunal’s letter dated 19 October 2020, by 23 November 2020.

12. The applicant did not respond to the Tribunal’s correspondence. The Tribunal has decided to proceed to decision without taking further steps to obtain information or any comments or response from the applicant.   

13. The applicant was represented in relation to the review by his registered migration agent, Mrs Li Qin.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

16. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it 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, 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.

17. 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.

18. The applicant applied for a Subclass 187 visa on the basis of the nomination application made by the nominator for the nominated position of Cook.  The nomination application was refused on 25 July 2019 and as such a delegate of the Minister refused the applicant’s Subclass 187 visa application on the basis that he did not meet cl.187.233(3) as there was no approved nomination.  The nominator sought review of that decision before the Tribunal, but on 12 February 2020 the Tribunal found it did not have jurisdiction to review the decision as the nominating business had been deregistered and ceased to exist as a legal entity.

19. This means that the nomination has not been approved as required by cl.187.233(3).  As such, following careful consideration, the Tribunal finds cl.187.233(3) is not met. 

20. Therefore, cl.187.233 is not met.

21. 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

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

    Phoebe Dunn
    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.