Ng (Migration)

[2021] AATA 1326

Ng (Migration) [2021] AATA 1326 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ka Yue Justin Ng
Mr Tsz Wa Chan

CASE NUMBER:  1924277

HOME AFFAIRS REFERENCE(S):          BCC2017/2191963

MEMBER:Stavros Georgiadis

DATE:31 March 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 31 March 2021 at 16:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accommodation and Hospitality Manager – subject of an approved nomination – 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (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 (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Accommodation and Hospitality Manager (ANZSCO 1419999).

5. On 12 August 2019, the delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as there was no approved nomination in relation to the position: cl.187.233(3).

6. The Tribunal wrote to the applicants providing particulars of adverse information that would be the reason, or part of the reason, for affirming the decision under review, and invited comment, or response to, the information. The applicants did not respond to the invitation to comment or respond.

7. The applicants were 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 primary visa applicant meets the criteria for grant of the (Class RN) Subclass 187 visas in respect of all applicants, which requires that there is an approved nomination for the position in respect of the primary applicant.

   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 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. In accordance with the procedure under s.359A of the Act the Tribunal wrote to the applicants on 15 February 2021 providing particulars of adverse information that would be the reason, or part of the reason, for affirming the decision under review, and invited written comment, or response to, the information. The particulars of the information are:

    The application for approval of the nominated position made by Lee & Han Pty Ltd
    (the nominator) was refused by a delegate of the Minister for Immigration. The
    nominator sought a review of that decision but the Tribunal found it did not have
    jurisdiction to conduct a review. This means that the nominator’s application for the nominated position has not been approved.

13. The Tribunal advised the applicants in writing under s.359(2) of the Act that if it did not receive a response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. As the applicants did not provide the information or request an extension of time in the allowed time, they have lost the right to a hearing. Accordingly, the Tribunal has proceeded to make a decision on the review without taking any further action to obtain further information or submissions.

15. On 15 May 2020, the Tribunal made a decision in the related AAT casefile 1920619, refusing the nomination, that it has no jurisdiction to decide that matter because the sponsor company LEE & HAN PTY LTD had been deregistered (and was therefore no longer a legal entity).  Accordingly, the delegate’s nomination refusal decision dated 8 July 2019 remains in force.  The Tribunal finds that on 8 July 2019 the nomination lodged by LEE & HAN PTY LTD, being the nomination referred to in cl.187.233(1), was refused by the delegate of the Minister for Immigration and Border Protection.

16. Having considered the available evidence before it, the Tribunal is satisfied that the nominated position is the subject of the relevant r.5.19 nomination application that seeks to meet the requirements of subparagraph 5.19(4)(h)(ii) relating to that position. The Tribunal has no evidence before it that the nomination is approved to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.   

17. Therefore, 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 in respect of all applicants including the second named applicant, Mr Tsz Wa Chan, claimed as a member of the same family unit as the primary applicant: cl.187.311.

    DECISION

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

    Stavros Georgiadis
    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.