Shi (Migration) - [2019] AATA 3382

Shi (Migration) [2019] AATA 3382 (12 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Shuhong Shi
Mr Chuanxin Zhou
Mr Fuzhi Zhou
CASE NUMBER:  1804835
HOME AFFAIRS REFERENCE(S):          BCC2017/2328778
MEMBER:De-Anne Kelly
DATE:12 July 2019
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 12 July 2019 at 2:28pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – extension of time request – medical certificate – no response to s 359A invitation – not entitled to appear before the Tribunal – Direct Entry stream – Conference and Event Organiser – subject of an approved nomination – nomination application refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASES
Hasran v MIAC [2010] FCAFC 40
Singh v Minister for Home Affairs [2019] FCA 723
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 30 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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 Conference and Event Organiser.
The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) and cl.187.233 of Schedule 2 to the Regulations because on the 8 August 2019 a delegate of the Minister refused the nomination related to the visa application of the primary applicant
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicants meet cl.187.233 of the Regulations.
Nomination of a position
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 3382
Decision Date: 12 July 2019

CaseChat Overview and Summary

This matter concerned an appeal by Ms Shuhong Shi and Mr Fuzihou Zhou and Mr Chauanxin Zhou (the applicants) against a decision of the Migration Review Tribunal (the Tribunal) to affirm the refusal of their applications for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), under the Direct Entry stream. The applicants sought to have the Tribunal's decision reviewed.

The primary legal issues before the Tribunal were whether the applicants met the requirements of subclause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of a position in regional Australia, and whether the Tribunal had erred in refusing to grant further extensions of time for the applicants to respond to a section 359A invitation. The Tribunal was required to consider whether the provided documentation adequately evidenced a medical condition that prevented the primary applicant from responding to the invitation.

The Tribunal reasoned that the applicants had failed to satisfy the criteria for the Subclass 187 visa in the Direct Entry stream. In particular, the Tribunal found that the applicants had not provided sufficient evidence to justify an extension of time to respond to the section 359A invitation. While a document relating to radiation oncology was provided, the Tribunal considered it ambiguous and insufficient to demonstrate a medical condition that prevented the applicant from responding, referencing the principle in *Singh v Minister for Home Affairs* [2019] FCA 723 that an inadequate medical certificate may be assessed without further inquiry. As the substantive criteria for the visa were not met, the Tribunal affirmed the delegate's decision.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Regional Employer Nomination (Permanent) (Class RN) visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicants meet cl.187.233 of the Regulations.Nomination of a position 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. 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. On 12 June 2019, the Tribunal wrote to the primary applicant, Ms Shuhong Shi and the secondary applicants Mr Fuzihou Zhou and Mr Chauanxin Zhou under s.359A of the Migration Act 1958, inviting them to comment on or respond to certain information which subject to their comments or response, could be the reason, or part of the reason for affirming the decisions under review. On 26 June 2019, we received a request for an extension of time of two months to provide the comment or response. On the same day, we provided a two week extension, and advised that the Tribunal required medical documents or certificates evidencing the need for an extension of time. On 27 June 2019, we received a further request for an extension of time to provide thecomments or response. The Tribunal on the same day refused to grant an extension oftime, as no evidence was provided. On 3 July 2019, we received another request foran extension of time to provide the comments or response together with a document. The Tribunal has given weight to the document provided which was a one page copy of a Metro South Schedule for radiation oncology however the document was ambiguous and it did not provide evidence of the primary applicant having a medical condition and why that would prevent the applicant from commenting or responding to the information provided. The Tribunal was mindful of the Judge in Singh v Minister for Home Affairs [2019] FCA 723 at [23] who found that, even though a medical certificate was provided by the review applicant it was inadequate and said, ‘There was no procedural unfairness in the Tribunal in April 2016 forming an assessment as to the adequacy of the medical certificate without further canvassing that issue with Mr Singh ‘. The Tribunal in this case has no medical certificate or other corroborating evidence only an ambiguous document and considers that it is fair to deny a further extension of time.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.De-Anne KellyMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

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