Shang (Migration)

[2020] AATA 3896

Shang (Migration) [2020] AATA 3896 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuchu Shang

CASE NUMBER:  1816998

HOME AFFAIRS REFERENCE(S):          BCC2016/3248326

MEMBER:Warren Stooke AM

DATE:4 September 2020

PLACE OF DECISION:  

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

Statement made on 04 September 2020 at 4:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – no approved nomination – sponsor in Tasmania – applicant in Brisbane – undertaking study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3), rr 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 September 2016. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Officer Manager – ANZSCO Code: 512111.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by KJF Enterprises Pty Ltd, being the nomination referred to in reg.187.233(1), was refused by a delegate of the Minister.

6. The applicant appeared before the Tribunal on 4 September 2020 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent, who did not participate in the hearing.

8. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 23 May 2020 and that he understood the content of the decision. In this regard, the applicant stated that the delegate found that there was no need for the position.

9. The applicant confirmed to the Tribunal that he thought a copy of the delegate’s decision had been provided to the Tribunal with his application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfied cl.187.233.

12. The applicant was provided with an invitation to attend the Tribunal hearing on 17 August 2020, which include the following information:

    “The application for approval of the nominated position made by KJF ENTERPRISES
    PTY TLD was refused by a delegate of the Minister of Immigration. The nominator
    sought a review of that decision, but it was recently affirmed by the AAT. This means
    that the nominator’s application for the nominated position has not been approved.

    You are invited to give comments on or respond to the above information in
    writing 7 days before the hearing. Your comments or response should be received by 28 August 2020.”

13. The Tribunal asked the applicant on several occasions during the hearing, if he had an approved sponsor to support his 187 visa application, which he initially stated he did not understand and led to the Tribunal explaining the requirements of the regulations and the need for those requirements to be satisfied.

14. The Tribunal rephased the question: “What do you say? Have you got an approved sponsor?” The applicant then responded to the Tribunal with a statement of: “No.”

15. The applicant was invited to provide the Tribunal with evidence concerning his application and he advised the Tribunal that he applied for the visa in 2016 and then appealed in 2018 and that he applied for a Bridging visa that allowed him to work and study.

16. The applicant stated that he is currently studying for a master’s degree in Marketing, at QUT and that he works as a team leader, where he has paid tax to the government.

17. The applicant stated that he is interested in management and that KJF Enterprise Pty Ltd is a hotel complex that provided him with experience as an Office Manager.

18. The applicant stated that he had been in Australia for 7 years and that he has a girlfriend here in Australia.

19. The applicant stated that his representative, Carl Young, had left Australia and that he was representing himself.

20. The applicant asked the Tribunal, if the Tribunal makes a decision will he have to leave Australia and the Tribunal responded that it is not permitted to provide such advice and that he would have to contact the Department of Home Affairs. In this regard, the Tribunal explained that the matter can either be remitted to the Department for reconsideration, based on the evidence, or alternatively, it could be affirmed, based upon the evidence and this was the decision the Tribunal will have to make.

21. The applicant advised the Tribunal that his studies will continue until the end of October (2020) and that with travel, it is hard to buy a ticket, and it is so sad to leave his girlfriend.

22. The applicant confirmed to the Tribunal that the Office Manager position with KJF Enterprise Pty Ltd was based in Tasmania and he confirmed that he currently lives in Brisbane.

    Nomination of a position

23. 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.

24. 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.

25. On the basis of the evidence provided by the applicant, at hearing that he does not have an ‘approved sponsor’, as required by cl.187.233, the Tribunal is satisfied that the applicant does not meet the required criteria for the grant of a 187 visa.

26. Therefore, cl.187.233 is not met.

27. 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

28. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Warren Stooke AM
    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.