Shi (Migration)

[2020] AATA 5465

Shi (Migration) [2020] AATA 5465 (2 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xueyan Shi
Ms Yueqi Li

CASE NUMBER:  1902449

HOME AFFAIRS REFERENCE(S):          BCC2018/581468

MEMBER:Phoebe Dunn

DATE:2 November 2020

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 02 November 2020 at 1:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Human Resource Adviser – no approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.233, 187.311

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 3 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 (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 Human Resource Adviser (ANZSCO 223111).

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 related nomination application by Air Voice International Pty Ltd ATF Air Voice International (the nominator), being the nomination referred to in cl.187.233(1) (the nomination), was refused by a delegate on 7 December 2018, and as such there was no approved nomination.

6. The applicants appeared before the Tribunal on 28 October 2020 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 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 applicants were 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, Ms Ling Sun.

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 there is an approved nomination.

11. At the hearing, the applicants gave oral evidence about how they came to be in their current situation.  Mr Shi stated that he had been working for the nominating business for approximately four and a half years and continues to work there.  He stated that the problem with the nomination and his visa arose because of lack of diligence and bad advice from his former representative, who was very unprofessional. He stated that he believed the representative had not provided adequate details with the nomination application, which led to the Regional Certifying Body (RCB) not supporting the nomination application. He stated that the representative refused to lodge an updated application for RCB approval, which led to the nomination being refused.

12. He stated that he worked hard for the nominating business and they continued to support him through ongoing employment.  He stated he believed he was an asset to the business and would continue to assist them to drive profits and at the same time make a positive contribution to the Australian community.  Mr Shi’s representative confirmed that the business was assisting with considering other options.

13. At the hearing the Tribunal explained that a requirement for the grant of a Subclass 187 visa in cl.187.233(3) is that there is an approved nomination, that this was a question of fact and the Tribunal had no discretion in relation to this issue. The Tribunal noted that it was not a question of whether the applicant had the skills and experience to undertake the nominated position, it was simply a question of whether that nomination had been approved.  The Tribunal explained to the secondary applicant that the case of the secondary applicant was reliant upon Mr Shi’s Subclass 187 visa being approved as set out in cl.187.311. The Tribunal stated that it understood the circumstances were difficult, but the Tribunal had no discretion in relation to the requirement that the related nomination be approved.

    Nomination of a position

14. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

15. 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.

16. The applicant applied for a Subclass 187 visa on the basis of the nomination lodged by the nominator, Air Voice International Pty Ltd ATF Air Voice International, in respect of the applicant, being the nomination referred to in cl.187.233(1).  That nomination application was refused by a delegate of the Minister on 7 December 2018 and as a consequence the applicant’s Subclass 187 visa was refused as there was no approved nomination.

17. The nominator did not appeal the decision to refuse the nomination application.  This means that the matter has been finally determined and as such there is no approved nomination as required under cl.187.233(3).  Accordingly, cl.187.233(3) is not met.

18. Therefore, cl.187.233 is not met.

19. 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.

20. The only basis of the application of the second named applicant is that she is a member of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a). As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the application of the second named applicant must also be affirmed because she does not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn
    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.