QU (Migration)

[2020] AATA 1085

QU (Migration) [2020] AATA 1085 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yanhua QU
Mr Chuang WU

CASE NUMBER:  1820859

HOME AFFAIRS REFERENCE(S):          BCC2017/434403

MEMBER:Peter Emmerton

DATE:6 April 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 06 April 2020 at 10:55am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Financial Investment Adviser – 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 (the Act).

2. The applicants applied for the visas on 2 February 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 Direct Entry stream, to work in the nominated position of Financial Investment Adviser ANZSCO 222311.

5. The delegate refused to grant the visas 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 23 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence, via telephone, from Mr Youssef Haddad, the Director of the nominating entity, The Trustee for the Shaliko Family Trust. This was combined with the hearing for MRT file ref 1813453, the nominator. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.

7. 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.

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

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. On 19 January 2017, the applicant’s sponsoring employer, The Trustee for the Shaliko Family Trust applied for approval for a nomination for the position of Financial Investment Adviser ANZSCO 222311. Ms Yanhua Qu is the nominee for the position. On 4 May 2018 the Department refused the application on the basis the nomination did not satisfy 5.19(4)(d)(i) of the Regulations. In a separate decision, the Department refused Ms Qu’s subclass 187 visa application because The Trustee for the Shaliko Family Trust’s nomination was not approved.

12. The Trustee for the Shaliko Family Trust and Ms Qu applied to the Tribunal to review the Department’s decisions.

13. On 23 March 2020, the Tribunal affirmed the decision under review to refuse The Trustee for the Shaliko Family Trust’s nomination for the position of Financial Investment Adviser ANZSCO 222311.[1]

    [1] AAT Migration and Refugee Division Case No. 1813453

14. On 23 March 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.

15. 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.

16. 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.

17. The applicant was invited to provide a written response by 6 April 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.

18. The applicant responded to the letter on 3 April 2020.

    Nomination of a position

19. 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).

20. 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.

21. 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 187.233(3).

22. Therefore, cl.187.233 is not met.

23. 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

24. The Tribunal affirms the decision not to grant the applicant’s Regional Employer Nomination (Permanent) (Class RN) visa.

    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.