Phang (Migration)

[2020] AATA 3994

Phang (Migration) [2020] AATA 3994 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Swee Heng Phang
Mr Kuan Seng Yee
Ms Shu Hui Yee
Mr Zhia Zhun Yee
Mr Zhia Hann Yee

CASE NUMBER:  1802213

HOME AFFAIRS REFERENCE(S):          BCC2017/2268315

MEMBER:Peter Emmerton

DATE:8 September 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 08 September 2020 at 11:52am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – nomination not approved – refusal affirmed by tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233, rr 5.19(4)(h)(ii), 1.13A, 1.13B

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 (the Act).

2. The applicants applied for the visas on 27 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 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 Sales and Marketing Manager, ANZSCO 131112.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal, via telephone on 24 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Irwin Khoo, the Director of the nominating entity, Aries Cars Pty Ltd. This was combined with the hearing for MRT file ref 1801959, the nominator.

7. The Tribunal found the evidence given by the applicants to be credible and they appeared to answer questions in an open and honest manner without obfuscation.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination has been approved.

11. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

12. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

13. On 16 June 2017, the applicant’s sponsoring employer, Aries Cars Pty Ltd applied for approval for a nomination for the position of Sales and Marketing Manager, ANZSCO 131112. Ms Swee Heng Phang is the nominee for the position. On 9 January 2018 the Department refused the application. In a separate decision, the Department refused Ms Swee Heng Phang’s subclass 187 visa application because Aries Cars Pty Ltd’s nomination was not approved.

14. Aries Cars Pty Ltd and Ms Phan applied to the Tribunal to review the Department’s decisions.

15. On 24 August 2020, the Tribunal affirmed the decision under review to refuse Aries Cars Pty Ltd’s nomination for the position of Sales and Marketing Manager, (ANZSCO 131112).[1]

    [1] 1801959

16. On 24 August 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised her that the Tribunal had affirmed the decision under review to refuse the nomination.

17. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, she cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

18. The applicant was advised that if she cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Home Affairs refusing the visa.

19. The applicant was invited to provide a written response by 7 September 2020. The letter advised the applicant that if she did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

20. The applicant responded to the letter on 7 September 2020, respectfully requesting that her visa be granted, in summary, to ensure a better education and quality of life for her family. Ms Phang did not provide any evidence to demonstrate that clause 187.233(3) was satisfied. Whilst the Tribunal has some sympathy for the applicant’s situation, it must abide by the requirements stipulated in the Migration Act, 1958.

    Nomination of a position

21. 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).

22. 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.

23. There is no evidence before the Tribunal that demonstrates that the requirements of cl.187.233(3) are satisfied.

24. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy cl.187.233(3).

25. Therefore, cl.187.233 is not met.

26. 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

27. The Tribunal affirms the decisions not to grant the applicant’s Regional Employer Nomination (Permanent) (Class RN) visas.

    Peter Emmerton

    
    

    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.