Meng (Migration)

[2019] AATA 6666

Meng (Migration) [2019] AATA 6666 (6 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Weihong Meng

CASE NUMBER:  1803814

HOME AFFAIRS REFERENCE(S):          BCC2016/2998559

MEMBER:Mark Bishop

DATE:6 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 06 November 2019 at 3:04pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination withdrawn – poor migration advice – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 September 2016. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General) 142111.

5. The applicant appeared before the Tribunal on 6 November 2019 to give evidence and present arguments. The Tribunal did not receive oral evidence from the applicant in Case number 1800238. The applicant in Case number 1800238 withdrew the nomination application immediately prior to the scheduled hearing.

6. The review application was conducted in the English and Mandarin languages.

7. The applicant was represented in relation to the review by their registered migration agent.

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 the applicant has an approved nominating sponsor and position in which to be engaged in employment.

   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

    ·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.

12. The review hearing scheduled in Case number 1800238 did not proceed as the nominator withdrew the nomination application immediately prior to the scheduled hearing.

13. The Tribunal provided adverse information to the applicant in this matter in conformity with s.359AA of the Act. The adverse information in the review application before the Tribunal was the withdrawal of the correlating nomination in Case number 1800238. The Tribunal provided a written copy of the decision in Case number 1800238 to the applicant. The Tribunal explained the meaning of that decision and the consequences of that decision. The Tribunal asked the applicant if she wished additional time to consider that information. The applicant advised she did not seek additional time.

14. The applicant advised the Tribunal she had not worked for the nominator in Case number 1800238. She advised she had only worked for one day in October 2017 for the nominator in Case number 1800238. The applicant provided a lengthy statement to the Tribunal. It is clear to the Tribunal the applicant has received poor advice from migration agents and has been financially disadvantaged by this advice at considerable cost.

15. The Tribunal did not approve the nomination in respect of the nominator under r.5.19 of the Regulations made by the employer Rainbow Dream Australia Pty Ltd in Case number 1800238 as the nominator withdrew the nomination application immediately prior to the scheduled hearing. The relevant case is Case number 1800238. Hence the applicant in this review application does not meet cl.187.233 (3) of Schedule 2 to the Regulations.

16. Therefore, cl.187.233 is not met.

    CONCLUDING PARAGRAPH

17. 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

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

    Mark Bishop
    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.