Mata (Migration)

[2018] AATA 3746

Mata (Migration) [2018] AATA 3746 (30 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Felix Simmon Mata
Ms Dan Luo Constantinou

CASE NUMBER:  1726047

DIBP REFERENCE(S):  BCC2017/2195375

MEMBER:Alison Mercer

DATE:30 June 2018

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 30 June 2018 at 6:21pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry Nomination stream – Financial Investment Advisor – No approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 and Border Protection 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 21 June 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 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 Financial Investment Advisor. 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 he found that the applicant was not the subject of an approved nomination. The delegate found that the nomination of the applicant made by his proposed employer, H & Q Finance Pty Ltd, had been refused by the Department on 11 August 2017. The delegate refused to grant a visa to the second named applicant (the applicant’s partner) on the basis that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 24 October 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Kai Zhang, as their representative and authorised recipient for correspondence.

7. The applicants appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Xiadong Frank Hu of H & Q Finance, the first named applicant’s proposed Australia employer, based in Mildura. Mr Hu also provided a letter of support.

8. The applicant told the Tribunal that he had been hoping to commence work for H & Q Finance but was unable to as he currently held a tourist visa. 

9. Mr Hu told the Tribunal that when the nomination made by his business, H & Q Finance, was refused by the Department, they did not appeal it. This was because it was made clear to them by the Department that the nominated occupation for the applicant – Financial Investment Adviser – required a licence in Australia that the applicant did not have, although he was currently studying to obtain it.  The applicant confirmed that he had completed about 45% of the course to obtain the relevant licence and expected to complete it entirely in a month or so.  In the meantime, H & Q Finance had lodged a new nomination of the applicant with the Department in anticipation of this and by the time it was under active consideration by the Department, the applicant would have obtained his licence. Mr Hu provided a Departmental acknowledgement that the new nomination was lodged on 12 April 2018.

10. The Tribunal discussed with the applicants its view that due amendments to the Act and Regulations on 18 March 2018, its view was that a new nomination made after 18 March 2108 would not be able to be used to satisfy the requirements of a subclass 187 visa made prior to 18 March 2018 (as was the case with the applicants’ subclass 187 visa application), even where the new nomination was made by the same employer.

11. The applicants and their agent and Mr Hu reiterated that they all wanted the applicant to be able to work for the nominating business, which was located in regional area. They expressed dismay at the fact that the legislative changes would be adverse to the applicant, who was now 49 years old and thus had fewer visa options than someone younger. The Tribunal undertook to consider the matter carefully before making its decision, but emphasised that it was bound to apply the law.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

13. 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).

14. 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.

15. It is not disputed that in this case, H & Q Finance Pty Ltd lodged a nomination of the applicant prior to 18 March 2018 but it was refused by the Department on 11 August 2017 and no review was lodged in respect of that decision.  A new nomination was lodged by H & Q Finance Pty Ltd of the applicant on 12 April 2018.

16. As discussed at the hearing, legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

17. Accordingly, the Tribunal must find that cl.187.233 is not met.

18. 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.

19. The Tribunal must also affirm the decision to refuse the second named applicant a subclass 187 visa as she cannot meet the secondary criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that she meets the primary visa criteria in her own right.

    DECISION

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

    Alison Mercer
    Member