OUYANG (Migration)

[2021] AATA 3006

OUYANG (Migration) [2021] AATA 3006 (29 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Xuejun OUYANG
Mr Lingwei Kong

CASE NUMBER:  1925500

HOME AFFAIRS REFERENCE(S):          BCC2018/385734

MEMBER:Cathrine Burnett-Wake

DATE:29 July 2021

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 29 July 2021 at 2:02pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Importer or Exporter – no approved nomination – nominator withdrew review application – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 187.223, 187.233; r 1.13

CASES

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 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 23 January 2018. 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 Importer or Exporter with FORBES (AUST) Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223(2) of Schedule 2 to the Regulations because the nomination application made by FORBES (AUST) Pty Ltd was not approved.

6. On 14 July 2021 the Tribunal wrote to the review applicants pursuant to s 359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing.

7. The particulars of the information were:

   • On 19 January 2018, FORBES (AUST.) PTY. LTD. (“the nominator”) applied to the Department of Home Affairs (“the Department”) to nominate the applicant to the position of ‘Importer or Exporter’ – ANZSCO 133311.
   • On 23 January 2018, the applicant to the Department of a Subclass 187 visa.
   • On 9 August 2019, the application for approval of the nominated position made by the nominator was refused by the Department
   • On 27 August 2019, the nominator applied to the Tribunal for merits review with respect to the Department’s decision.
   • On 10 September 2019, the Department refused the applicant’s application.
   • On 11 September 2019, the applicant applied to the Tribunal for merits review with respect to the Department’s decision.
   • On 12 July 2021, the Tribunal accepted the nominator’s withdrawal of their matter.

8. It was explained that the information was relevant because it means the nominator’s application for the nominated position has not been approved, and further that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

9. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 28 July 2021 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicants are 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

11. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

14. 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.

15. 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 reg 1.13A and reg 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.

16. The applicant's nominating employer FORBES (AUST) Pty Ltd, applied to the Department for the approval of the position of Importer or Exporter in respect of the applicant. The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision. FORBES (AUST) Pty Ltd withdrew its review application before the Tribunal in relation to the nomination application for the applicant. This information was put to the applicants and they were provided with an opportunity to comment, however, no comments were received.

17. The Tribunal therefore finds as there is no approved nomination, cl.187.223 is not met.

18. 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.

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

    DECISION

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

    Cathrine Burnett-Wake
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.