Shi (Migration)

[2020] AATA 4600

Shi (Migration) [2020] AATA 4600 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gaohui Shi
Ms Ting Kong
Miss Tianyu Shi

CASE NUMBER:  1810727

HOME AFFAIRS REFERENCE(S):          BCC2017/209194

MEMBER:Peter Emmerton

DATE:7 October 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 07 October 2020 at 11:24am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 187 (Regional Sponsored Migration Scheme) - Direct Entry stream – Importer or Exporter, ANZSCO 133311 – nominator not lodged review application for nomination refusal – de-registration of nominating company – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, rr 1.13A, 1.13B, 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 (the Act).

2. The applicants applied for the visas on 16 January 2017. 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 Importer or Exporter, ANZSCO 133311.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.

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

7. The review was conducted with the assistance of an interpreter fluent in Mandarin and English language.

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 nomination has been approved.

10. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

11. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

12. On 9 January 2017, the applicant’s sponsoring employer, Tetrastone Pty Ltd applied for approval for a nomination for the position of Importer or Exporter, ANZSCO 133311. Mr Gaohui Shi is the nominee for the position. On 16 April 2018 the Department refused the application. In a separate decision, the Department refused Mr Gaohui Shi’s subclass 187 visa application because Tetrastone Pty Ltd’s nomination was not approved.

13. Mr Gaohui Shi applied to the Tribunal on 16 April 2018 to review the Department’s decision.

14. Tetrastone Pty Ltd applied to the Tribunal to review the Department’s decision on 30 June 2020, following the Tribunal informing Mr Gaohui Shi, under s 359(A) that,

    ‘A subclass 187 visa cannot be approved if the nomination linked to the visa
    application is not approved. The nominator (sponsor) Tetrastone Pty Ltd has
    not lodged an application for review.

    This information is relevant to the review because it is a requirement for the grant of
    the visa that the position specified in your visa application is the subject of an approved nomination.’

15. On 21 July 2020, the Tribunal notified Tetrastone Pty Ltd that the Tribunal had no jurisdiction to determine their application for review of the decision to refuse Tetrastone Pty Ltd’s nomination for the position of Importer or Exporter, ANZSCO 133311.[1] The effect of this is that the original decision made by the department stands and there is no approved nomination related to the visa application made by Mr Gaohui Shi.

    [1] 2010896

16. On 21 July 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised the following.

    ‘Dear Mr Shi, Ms Kong and Miss Shi

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR GAOHUI SHI, MS TING KONG AND MISS TIANYU SHI

    I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas. In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·    The applicant, Mr Gaohui Shi, applied for a Regional Sponsored Migration Scheme, subclass 187 visa, in the Direct Entry Scheme

    ·    The nomination was refused by a delegate of the Department on 16 April 2018

    ·    A subclass 187 visa cannot be approved if the nomination linked to the visa application is not approved. The Tribunal has found that it does not have jurisdiction to review the application for the nominator (sponsor) Tetrastone Pty Ltd. Moreover, it appears the nominator has been deregistered. This means that their relevant nomination has not been approved.

    This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application the subject of an approved nomination.

    If we rely on this information in making our decision, we may inf that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that must affirm the decision that is under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 4 August 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 4 August 2020, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 4 August 2020 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’

17. The applicant responded to the Tribunal on 4 August 2020.

    ‘Dear Member,

    Thank you for your email.

    My employer has lodged an application for a review for nomination weeks ago but unfortunately, the application has been deemed invalid.

    We are sorry for losing the review right for the nomination as we are not informed by our previous migration agent about the right process. We have lodged the review for visa application in the right time frame but we dont even know that the employer need to go through the review for nomination first.

    It was a pity that we were not getting the right information and did not follow the right procedure.

    Please kindly let us know if there is anything we can do about this case and we will strictly follow your instructions.’

    Nomination of a position

18. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

19. 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.

20. On 7 September 2020 the Tribunal sent a letter inviting the applicant to attend a hearing on 23 September 2020 to give evidence and present arguments relating to the issues arising in their case. On 16 September 2020 we received a request that the hearing be postponed. The Tribunal agreed, and the hearing was postponed until 24 September 2020. On 21 September, the Tribunal again received a further request that the hearing be postponed. The Tribunal requested further supporting documentation on 22 September 2020, which was received and taken into consideration on 23 September 2020. The Hearing was then rescheduled for 6 October 2020.

21. The Tribunal asked the applicant, during the hearing if they had an approved nomination associated with their visa application. They replied in the negative. They also stated that their original agent had left the country and had not informed them that the visa application had failed because the nomination had failed.

22. The Tribunal asked the visa applicant if they were aware that their nominator, Tetrastone Pty Ltd, was no longer operating a business and that their ABN was cancelled from 5 December 2019. It noted that the visa applicant had stated at the start of the hearing that they were employed by Tetrastone when the Tribunal asked who employed them. The Tribunal reminded them that in the letter dated 21 July 2020, the Tribunal had informed them that the company was no longer registered. They went on to say later in the hearing that it was Tetrastone for whom they were originally working but were now worked for another employer. They also stated that Tetsrastone was registered again, no evidence had been tendered prior to the hearing or at the hearing that this was in fact the case.

23. The Tribunal gave Mr Shi until 5pm the day of the hearing to produce evidence that Tetrastone Pty Ltd was reregistered, (6 October 2020). The Tribunal received an email from the visa applicant prior to 5pm, 6 October 2020. In the email Mr Shi stated that the ACN had been reinstated and the ABN had also been reinstated as of 11 September 2020. He then stated that the details would be able to be checked at the end of October, stating an ATO reference of 105175443038. The Tribunal acknowledges the unsupported claim made in the email but does not view it as relevant. Regardless of the company’s registration status, which remains unproven, the fact remains that there is not a satisfied nomination linked to his visa which is an essential criterion. The Tribunal found on 21 July 2020, that it did not have jurisdiction to review the nominator’s case. The effect of that is that the original refusal made by the delegate stands. This in turn means that there is not a satisfied nomination associated with the Mr Shi’s 187 visa.

24. The Tribunal explained several times throughout the hearing that the applicant’s visa was not able to be approved without a satisfied or approved nomination associated with it, which was awarded to the nominator attached to their original application.

25. There is no evidence before the Tribunal that an approved nomination associated with this Regional Employer Nomination (Permanent) (Class RN) visa application has been granted.

26. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

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.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant’s Regional Employer Nomination (Permanent) (Class RN) visa.

    Peter Emmerton
    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.