Nguyen (Migration)

[2023] AATA 4387

Nguyen (Migration) [2023] AATA 4387 (19 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi My Kim Nguyen
Mr Cho Yee Peter Tsang
Master Gabriel Ka Ching Tsang

REPRESENTATIVE:  Mr Gordon Yuk Kwai Cheng

CASE NUMBER:  2102640

HOME AFFAIRS REFERENCE(S):          BCC2020/595726

MEMBER:Terrence Baxter

DATE:19 December 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 19 December 2023 at 9:29am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – hair or beauty salon manager – subject of approved position nomination – related nomination application refused – joint hearing of nomination and visa reviews – nomination refusal affirmed – no response to invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 363(1)(b),
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223(2), 187.311

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 27 February 2020. 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 Temporary Residence Transition stream, to work in the nominated position of Hair or Beauty Salon Manager for the Trustee for COCR Family Trust (the nominator).

5. The delegate refused to grant the visas on 23 February 2021 because the applicant did not meet cl 187.223(2) of Schedule 2 to the Regulations which required that she be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 14 May 2020 and that accordingly the applicant did not satisfy cl 187.223(2) and did not meet cl 187.223 as a whole.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl 187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 3 March 2021.

8. The applicant appeared before the Tribunal by video conference on 25 October 2023 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application of the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

10. The applicants were represented in relation to the review by their registered migration agent Ms Yin Wong until 15 July 2021 and by their legal practitioner Mr Gordon Cheng from that date. Mr Cheng attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

14. In addition, this criterion also requires that:

    ·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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in reg 5.19)

    ·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. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Hair or Beauty Salon Manager approved, with the applicant as nominee, on 27 February 2020. The nomination application was refused on 14 May 2020 and the nominator sought review of that decision with the Tribunal on 4 June 2020.

16. On 4 December 2023, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

17. On 4 December 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 4 December 2023, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by The Trustee for COCR Family Trust.

    This information is relevant to the review because it was the nomination referred to for
    the purposes of satisfying cl. 187.233(1).

    If we rely on this information in making our decision, we may find that Ms Thi My Kim
    Nguyen does not meet cl. 187.233(3), which requires the nomination be approved, and
    affirm the decision under review.

    We may subsequently find that Mr Cho Yee Peter Tsang and Master Gabriel Ka Ching
    Tsang do not meet the secondary visa criterion cl. 187.311, which requires that each
    applicant be a member of the family unit of a person who satisfies the primary criteria
    for the grant of a visa and who holds a Subclass 187 visa, and affirm the decision
    under review in respect of their applications.
    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 18 December 2023.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicants failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has been received by the Tribunal.

19. Where an applicant is invited to comment on or respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(2) of the Act.

20. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 17 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 23 February 2021 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 4 December 2023 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 25 October 2023 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

21. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 4 December 2023 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 187.223 and cl 187.311 of Schedule 2 to the Regulations.

22. The Tribunal notes that the application for nomination for the position of Hair or Beauty Salon Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.223(2) is not met.

23. Therefore, cl 187.223 is not met in respect of the applicant.

24. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

25. In relation to the second named and third named applicants, the Tribunal notes that cl 187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant be a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named and third named applicants do not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.

    DECISION

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    187.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.