Su (Migration)

[2020] AATA 5466

Su (Migration) [2020] AATA 5466 (2 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kaichun Su

CASE NUMBER:  1828667

HOME AFFAIRS REFERENCE(S):          BCC2017/3539487

MEMBER:Phoebe Dunn

DATE:2 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2020 at 12:07pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Agricultural Technician – no approved nomination – nomination review application withdrawn – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13; 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 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 27 September 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Agricultural Technician (ANZSCO 311111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by South Australia LuHeng Pty Ltd (the nominator) in respect of the applicant, being the nomination referred to in cl.187.233(1) (the nomination), was refused on 9 August 2018 and as such there was no approved nomination.

6. The nominator appealed the decision to refuse the nomination application to the Tribunal, but subsequently withdrew the application for review.

7. The applicant 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.

8. 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 applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review by his registered migration agent, Mr Hang Chen.

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 there is an approved nomination.

12. At the hearing, the applicant gave oral evidence about the background to his case. He stated that he worked for the nominating business for over a year before the nomination was refused. He stated that he understood that his Subclass 187 visa application had been refused because the nomination was refused and that the nominator had applied for review of that decision but later withdrew the review application.  The applicant stated that he is still working for the nominator even though the nominator had withdrawn the review application but noted that the ownership of the business had changed.

13. At the hearing, the Tribunal explained that it is a requirement for the grant of a Subclass 187 visa that the related nomination has been approved, being the nomination referred to in cl.187.233(1).  The Tribunal explained that it had no discretion in relation to the requirement in cl.187.233(3) that there be an approved nomination and that this was a question of fact.

14. At the hearing, the Tribunal put information to the applicant under s.359AA of the Act that would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal had already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind. The Tribunal put to the applicant the following particulars of the information, explained the relevance of it and the consequences of the Tribunal relying on it as follows:

    a.The particulars of the information are that the application for approval of the nominated position made by South Australia LuHeng Pty Ltd in respect of the applicant’s Subclass 187 visa application was refused by the Department of Home Affairs on 9 August 2018.  The nominator applied for review of that decision but subsequently withdrew the review application.  This means that there is no approved nomination, or nomination application on review before the Tribunal, and that the decision in relation to the nomination is final;

    b.This information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant as required under cl.187.233(3) of the Regulations and it is a requirement for the grant of the Subclass 187 visa that the position to which the application relates is the subject of an approved nomination and a new nomination application will not satisfy this requirement; and

    c.If the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified on the visa application is not the subject of an approved nomination, and that this would mean that the applicant does not satisfy a requirement for the grant of the Subclass 187 visa, and that the Tribunal must affirm the decision that is under review.

15. The Tribunal invited the applicant to comment on or respond to the adverse information or to seek additional time to comment on or respond to the adverse information.

16. In response, the applicant stated that he understood there was no approved nomination and that the Tribunal had no discretion in relation to this issue.  The applicant stated that he did not require or request additional time to respond to the adverse information.

17. The Tribunal stated that it understood the circumstances were difficult but reiterated that it did not have discretion in relation to the requirement in cl.187.233(3) that the related nomination be approved.

    Nomination of a position

18. 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.

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. In this case, the related nomination application by South Australia LuHeng Pty Ltd (the nominator) for an Agricultural Technician, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister for Home Affairs on 9 August 2018. The nominator lodged a review of the decision but that review application was subsequently withdrawn. This means that nomination application has been finally determined. It follows that there is no approved nomination and as such cl.187.233(3) is not met. After careful consideration, the Tribunal finds that cl.187.233(3) is not met.

21. Therefore, cl.187.233 is not met.

22. 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

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

    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.