Tao (Migration)

[2023] AATA 74

Tao (Migration) [2023] AATA 74 (13 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jiaxin Tao
Miss Siyi Cao

REPRESENTATIVE:  Mr Jiang Liu (MARN: 0428586)

CASE NUMBER:  1920518

HOME AFFAIRS REFERENCE(S):  BCC2018/317762

MEMBER:Ian Berry

DATE:13 January 2023

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 13 January 2023 at 11:09am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – café or restaurant manager – subject of approved position nomination – refusal of related nomination application affirmed on review – intention to withdraw application – unsigned withdrawal form not accepted – member of family unit – 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 (Cth) (the Act).

2. The applicants applied for the visas on 19 January 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 (Cth) (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 Café or restaurant manager.

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 applicant was not the subject of an approved nomination.

6. The applicants were represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has an approved nomination of a position that has not been withdrawn.

   Nomination of a position

9. 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.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

11. The applicant was nominated by Sengaroun Pty Ltd for the position of Café or restaurant manager in its restaurant in regional Queensland.  The nomination was affirmed by the Tribunal on 7 December 2022.

12. On 9 December 2022, the Tribunal invited the applicant to comment on or respond to information that the applicant’s nomination had been affirmed by the Tribunal.  The applicant was advised that the Tribunal affirmed the decision of the delegate not to grant the Employer Nomination lodged by Sengaroun Pty Ltd and which was affirmed on 7 December 2022.

13. The invitational letter dated 9 December 2022 stated that the applicant’s comments or respond should be received by 23 December 2022.  If the applicants did not respond or comment by that date then the applicants would lose the right to a hearing.  The applicants (or either of them) did not respond at any time.

14. The applicants’ legal practitioner contacted the Tribunal on 5 January 2023 advising of the client’s intention to withdraw his application.  That letter was not accompanied by the Tribunal’s Withdrawal Form which was provided.

15. By email received by the Tribunal on 11 January 2023, the applicant’s legal practitioner provided.  A withdrawal form dated 11 January 2023 but unsigned.  The Tribunal decided not to accept the withdrawal form because it was unsigned.  The Tribunal now proceeds to decide the applicants application.

16. Therefore, cl 187.233 is not met.

17. In respect of the 2^nd named applicant (the secondary applicant) the Tribunal notes there is no information before it to suggest that secondary applicant meets the primary criteria for the grant of the visa. The secondary applicant applied for the visa because she was a member of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicant, as she was a member of the family unit of a person who did not satisfy the primary criteria for the visa.

18. 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

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

    Ian Berry
    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.