Teng (Migration)

[2023] AATA 2078

Teng (Migration) [2023] AATA 2078 (3 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kian Seong Teng
Ms NATHALIA
Mr Jayden TENG
Mr Jordan TENG

CASE NUMBER:  1924181

HOME AFFAIRS REFERENCE(S):          BCC2018/4648007

MEMBER:Stephen Witts

DATE:3 July 2023

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 03 July 2023 at 8:19am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 2.72

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 23 October 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 ANZSCO code 141111.

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 delegate was not satisfied that the applicants were the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 9 May 2023 to give evidence and present arguments.

7. The Tribunal also heard arguments from a witness Ms Zhen Wang.

8. The Tribunal notes that on 26 April 2023 the applicants’ representative requested a hearing postponement on the basis that the applicants’ then migration agent, Mr Tong Li, did not follow-up with his clients, the applicants, on the previous decision made to refuse the employer nomination relevant to this matter in case number 1918920 despite having received the information from the AAT regarding the affirm decision in the above case dated 19 August 2022. It was stated that Mr Tong Li was in prison at the time he was contacted.

9. The Tribunal considered this matter carefully noting that the applicants were contacted in the appropriate manner in accordance with the protocols in place wherein the applicants’ representative or migration agent is contacted on their behalf in accordance with their request. The Tribunal also notes that the applicants were invited to this hearing in the appropriate manner on 16 March 2023 and that they responded on 21 March 2023 stating that they would attend the hearing. The application for a postponement on the above grounds was made after the initial acceptance of the hearing date.

10. Based on these considerations the Tribunal refused a request for a hearing postponement and informed the applicants that the hearing would go ahead on 9 May 2023.

11. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicants are the subject of an approved nomination.

    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 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.

16. The Tribunal has considered all the evidence before it including material provided prior to the hearing and evidence given at the hearing.

17. The Tribunal notes that it has been provided with the relevant delegate’s decision dated 28 August 2019 where it was stated that on 29 June 2019 the nomination application on behalf of the primary applicant by The Trustee for Wang And Yuan Family Trust was refused by the Department. This application was refused because the application did not provide any information in terms of how the business determined the Australian Market Salary Rate (AMSR) applicable to the nominated position and that therefore the application did not accord with the method specified in IMMI 18/033 and therefore did not meet subclause 2.72(15)(c).

18. The Tribunal has also considered material provided to it prior to the hearing from the applicants.

19. Included from the applicants was ASIC material from a business entitled Ant and Elephant Cafe, the trading name for the above sponsor, organisation charts for this business, employment agreements, financial reports for this business, BAS statements, pay slips for the primary applicant, bank statements, IELTS results for the primary applicant, a driver’s licence for the primary applicant, a responsible service of alcohol accreditation for the primary applicant, notice of assessments and income tax statements for the primary applicant, reference letters, TAFE training material, hospitality course material, birth certificates for the primary applicant’s 2 dependent children, and other material.

20. At the hearing the Tribunal had a discussion with the applicants regarding the application.

21. The primary applicant, Mr Teng, stated that he first came to Australia in 2013 holding a student visa and that he studied accounting and commerce at advanced diploma and degree level prior to holding a 485 visa, and that he started work in the above café with this employer in July 2018 firstly as a casual and then as a full-time employee and that he is still working in the business to date.

22. He stated that he worked for a several years in the industry as a staff member and restaurant manager in Singapore prior to coming to Australia and that he now has more than 10 years’ experience in the industry, that he has been living in Adelaide now for several years, that he is fluent in several languages which assists in his career, and that he now has three children born here in Australia, twins aged seven and another aged three years old.

23. He stated that he received bad advice from migration agents who didn’t do a good job for him and also went back to China and didn’t submit enough information to the Department.

24. The primary applicant’s wife, Ms Nathalia, stated that they have now been here for 10 years, that her husband is very hard-working and that they would like to stay here.

25. Mrs Wang, the primary applicant’s current employer and original nominator, stated that the primary applicant still works in the business, that he is a highly skilled café or restaurant manager, that she wants a manager who can speak several languages, that he is a very valuable employee, and that the business struggled during the pandemic but is now doing well, and that she has two children and that for periods of time her husband was in China and that the primary applicant is needed in the business.

26. The Tribunal had a detailed discussion with the applicant and the other parties, and it was acknowledged by the primary applicant that he may not be the subject of an approved nomination but that he was given bad service from his agent.

27. The Tribunal has considered this matter carefully and finds that although the primary applicant presented as a credible witness in this regard it is also the case that he did acknowledge that there were issues with the material provided to the Department and that also it is the responsibility of the applicant to ensure that all necessary information is provided in any visa application.

28. The Tribunal has also considered carefully that the primary applicant has now been working for this business for some time and is a valuable employee, however the Tribunal finds that it has been established clearly that the applicant is not the subject of an approved nomination as outlined in the above material and therefore the Tribunal finds that the applicant does not meet the criteria for the visa.

29. Therefore, cl 187.233 is not met.

30. 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.

31. The Tribunal finds that as the primary applicant does not meet the criteria for the grant of the visa that the secondary applicants also did not meet the criteria for the grant of the visa.

    DECISION

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

    Stephen Witts
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.