Shen (Migration)

[2019] AATA 867

Shen (Migration) [2019] AATA 867 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xuya Shen
Ms Yi Yi

CASE NUMBER:  1802665

HOME AFFAIRS REFERENCE(S):           BCC2016/2790707

MEMBER:Cathrine Burnett-Wake

DATE:4 March 2019

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 04 March 2019 at 2:55pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – nomination withdrawn by employer – established own business – new nomination application lodged – no discretion – decision under review affirmed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 23 August 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO 142111).

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 associated nomination by HHOM Pty Ltd was not approved.

6. The applicants appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. 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 their registered migration agent.

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 there is an approved nomination.

   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 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.

12. At hearing the applicant conceded that there was no nomination by HHOM Pty Ltd. However, that he wished to explain to the Tribunal the circumstances that led to the refusal.

13. The applicant explained that when he was working for his previous employer, HHOM Pty Ltd, he believed that he was working in a genuine position.  However, he said that there were issues with his pay, such as no payment for holidays.  He stated that when he brought this up with his employer, the employer threatened him, and finally withdrew his nomination.  He stated that not only did they withdraw his nomination, but also the nominations of two other non-citizen workers. The applicant stated that he believes that he is a victim in the situation because he has been threatened and taken advantage of.

14. The Tribunal asked if the applicant had sought legal advice about his wage entitlement issues, to which he responded that he had contact the Fair Work Commission, however, even with their assistance he was not able to reach a settlement with the former employer and needed to seek independent legal advice to resolve it. Evidence was provided to the Tribunal of communication the applicant had between himself, his former employer and the Fair Work Commission. At the time of hearing, the applicant advised he had not yet sought independent legal advice regarding his claim as he had been too busy.

15. The applicant told the Tribunal that after he left employment with HHOM Pty Ltd that he had started up his own mobile phone and electronics screen repair business on Phillip Island. The applicant also advised that he had lodged a new permanent nomination however, the Department were yet to finalise that application. The applicant provided evidence to the Tribunal of the business he had established, along with evidence of the new nomination application relating to his business.

16. The Tribunal discussed with the applicant that its view was that this current visa application under review could not be linked with the subsequent nomination application lodged by his business which he was awaiting an outcome on.

17. The Tribunal explained to the applicant that it had no discretion to consider the circumstances that led to the nomination being refused and then its withdrawal from merits review before the Tribunal, and that it was solely determining whether there was an approved nomination relating to this visa application under review and that the information before the Tribunal was there was no approved nomination.

18. The applicant’s wife also gave evidence to the Tribunal; she re-iterated the applicant’s evidence about the circumstances that led to her husband leaving his former employer and the wage entitlement issues. She explained that she and her husband are working hard to make a good life, and have no relatives in Australia for support. She outlined that things had been hard for them during the past four years, with at least one family member per year having passed away, including the applicant’s mother and that her grandmother and grandfather had also passed away and they couldn’t go back home during these times to say goodbye because of their bridging visa.

19. The applicant’s wife asked the Tribunal to give her husband a chance to start again.  She said that it would help many elderly people living on Phillip Island, and provided an example of an elderly customer whose wife had recently passed away and had many photos of his wife on his damaged mobile phone.  She explained that her husband was able to help the elderly customer by retrieving the photos and thereby helping to preserve the memory of his wife.  She further advised that she felt a connection with this man because it stirred memories of her grandparents and how she had not been able to spend time with them before their death. She concluded her evidence by again imploring that the Tribunal give her husband a chance so that they can start again and also create a new generation.

20. Following the visa applicant’s wife’s evidence, the Tribunal re-iterated it had no discretion to consider the circumstances that led to the nomination being refused, and that it was solely determining whether there was an approved nomination.

21. The applicants’ representative, at the conclusion of the hearing, outlined that her client’s current orders with the mobile phone business that will take 2 to 3 months to complete.  She asked if the decision could be delayed to account for this.

22. Following the hearing the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicants to comment on or respond to the information. The particulars of the information were that the application for approval of the related nominated position, made by HHOM Pty Ltd was refused by a delegate of the Minister for Immigration. And, further, that the nominator sought a review of that decision but the matter was withdrawn from the Tribunal. Meaning that the nominator’s application for the nominated position has not been approved. The letter further explained to the applicants that this information was relevant to their 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.

23. In response to the Tribunal’s letter the applicants provided a written letter which stated in part:

    ‘As I mentioned in my previous letter, HHOM Pty Ltd withdrawn the review application because of I raised the issue regarding my unpaid wage from 2016 to 2018 after the nomination review was lodged. The employer of HHOM Pty Ltd got very angry with me. Therefore, she requested my agent to withdraw the review application on 26/02/2018. I understood that this is relevant to my review application. However, I believe I am the victim of this unfair treatment. I have contacted McDonald Murholme for legal assistance. They initially arranged an early appointment on Thursday 28 February 2019 but later called me advising me to go to their office on next Tuesday the 5th March 2019, which is one day after the deadline to response your invitation. I am wondering whether I can provide further information to your office after I meet my lawyer at McDonald Murholme.’

24. In addition to the written response, the applicants provided the following documents:

    • Email confirmation received from McDonald Murholme which evidences the applicants have taken steps to seek independent legal advice about the wage entitlement claim from the former employer;
    • Recent BAS lodged for the applicants business;
    • Details of orders received from customers;
    • Job advertisement published to recruit a retail manager and sales representative.

25. The Tribunal has considered the applicants request to delay the decision and await further information regarding any legal action that may occur in respect to the wage entitlement dispute and because of any outstanding orders they may have for their customers. However, the Tribunal has decided not to delay in finalising its decision. Firstly, as outlined to the applicants at hearing, the Tribunal’s role in this visa review is to solely determine whether there was an approved nomination relating to this visa application under review and that the information before the Tribunal, and as agreed by the applicants, is that there was no approved nomination. Secondly, any independent legal action the applicant may choose to undertake regarding the wage entitlement dispute with the former employer and its outcome will have no impact on the Tribunal’s determination of whether there is an approved nomination. Additionally, the Tribunal acknowledges the outstanding customer orders the applicant has; however, the Tribunal does not consider these to be reason enough to delay its decision.

26. The facts are not under dispute, and both parties agree that there is no approved nomination.

27. Therefore, cl.187.233 is not met.

28. 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.

29. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant a subclass 187 visa to the second named applicant as she 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 she can meet the primary criteria in her own right.

    DECISION

30. 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

    (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.