SEE (Migration)

[2022] AATA 2333

SEE (Migration) [2022] AATA 2333 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ka Yee SEE
Mr Chun Hung FONG
Mr Ching Hang Timothy FONG

REPRESENTATIVE:  Mr Bing Yao (MARN: 0960481)

CASE NUMBER:  1835019

HOME AFFAIRS REFERENCE(S):          BCC2018/728977

MEMBER:Bridget Cullen

DATE:19 May 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 19 May 2022 at 11.09am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Secretary –no approved nomination –  tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, 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 13 February 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 Secretary (ANZSCO 521211).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the first named applicant’s related nomination application lodged by Kooralbyn Resort Pty Ltd was refused.

6. The applicants appeared before the Tribunal on 9 September 2021 and 14 October 2021 to give evidence and present arguments. This hearing was held conjointly with the nomination for the first named applicant, and six other nomination applications lodged by the applicant’s nominating company, and their respective nominees. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by Mr Bing Yao, who attended the Tribunal hearing.

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 applicant’s related nomination has been approved.

   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 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 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.

12. The Tribunal affirmed the decision to refuse the nomination application lodged by Kooralbyn Resort Pty Ltd on 7 April 2022.

13. The Tribunal wrote to the review applicant on 29 April 2022, pursuant to s 359A of the Migration Act, advising them of the decision, and invited them to comment on how it would affect the current application for review. The Tribunal provide the applicant until 13 May 2022 to provide a response.

14. On 13 May 2022, the applicant uploaded a single page statement, which provided the following:

    “Dear Officer: 11 May 2022

    The Kooralbyn Valley is a secluded hinterland paradise tucked away in the heart of regional Queensland’s picturesque Scenic Rim Region. The Kooralbyn Resort is Australia’s first integrated resort, for a getaway, play, explore. The Resort has been chosen as the satellite village of the Brisbane 2032 Olympic Games at the Centre of Scenic Rim. The Resort also was ranked by travel bible: Lonely Planet, as the top 10 holiday hotspots in the world.

    The nomination for my position as a Secretary had been refused by Department of Home Affairs and these refusal decisions also affirm by the AAT based on question of the financial viability of the Resort. I started to work in the resort from 2015. I did not stop the job until Covid-19 broke out in 2020. I understand that in order to meet to requirement from the Migration Regulation, which demands the applicant must be employed on a full-time basis in the position for at least 2 years. The resort has been operating from 2016 until present. So, the reason The Department of Home Affairs refused my nomination in 2018 was not well founded. So, if the Department of Home Affairs did not refuse my nomination, I would have worked full time at the resort for more than 2 years

    I am a Hong Kong passport holder. Under current situation, for the allknown reasons, I am worried about my family, in particularly for the future of my children. With re-opening the international boarder, the resort is desperately needs me to re-establish the international tourist market with other staff.

    Please take the above information into consideration when you make the decision.

    Yours sincerely

    Ka Yee SEE”

15. The Tribunal has considered the information provided by the applicant, including their understandably emotional plea to remain in Australia. However, the Tribunal must apply the relevant criteria, and does not have the ability to overlook the absence of an approved nomination, nor does the Tribunal have the ability to revisit the Tribunal’s earlier decision made in relation to the nomination application.

16. In this case, the related nomination application lodged by Kooralbyn Resort Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister, after which the nominator sought a review of that decision. On 7 April 2022, the Tribunal affirmed the decision under review, meaning that the nomination has not been approved as required under cl.187.233(3) of Schedule 2 to the Regulations. If follows that cl.187.233(3) is not met.

17. Therefore, cl 187.233 is not met. 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.

18. As the Tribunal has found that the first named applicant does not meet cl 187.233, it therefore follows that the secondary applicants are unable to meet the criteria in relation to secondary applicants, namely cl 187.311, and their decisions must also be affirmed.

    DECISION

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

    Bridget Cullen
    Senior 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.