Tin (Migration)

[2021] AATA 3231

Tin (Migration) [2021] AATA 3231 (16 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wan Yiu Tin
Mr Sze Luk Ng

CASE NUMBER:  1820885

HOME AFFAIRS REFERENCE(S):          BCC2016/4191434

MEMBER:Mark O'Loughlin

DATE:16 August 2021

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 16 August 2021 at 5:47pm

CATCHWORDS

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

LEGISLATION

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

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 12 December 2016. 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 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 Marketing Specialist (ANZSCO 225113).

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 Minister had not approved the related nomination.

6. The applicant appeared before the Tribunal on 18 January 2021 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 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 at subclause 187.233(3) that the nomination has been approved and has not been subsequently withdrawn.

11. In a decision of 12 July 2021 the Tribunal affirmed the Minister’s earlier decision not to approve the related nomination.

12. By email of 13 July 2021 Tribunal advise the applicants of its decision not to approve the nomination and advised that this adverse information would be the reason or part of the reason to affirm the decision in relation to this visa application.

13. The applicants are invited to respond by 27 July 2021.

14. The applicants sought an extension of time within which to respond and were granted until 4 August 2021.

15. The applicants sought a further extension of time indicating that they wished to consider instituting an appeal in relation to the nomination that they were awaiting release of the file in order to give that proper consideration.

16. The Tribunal was not satisfied that a decision in relation to an appeal in the related matter should delay a decision being made in the subject visa application.

17. The Tribunal declined to grant further extension and is not received submissions relevant to this visa application.

18. The Tribunal is satisfied that the position to which the application relates has not been approved as required by cl. 187.233 (3)

19. Therefore, cl 187.233 is not met.

20. 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 in relation to the applicant must be affirmed.

21. The second applicant’s application was refused because the delegate was not satisfied that the second applicant satisfied cl.187.311(a) of Schedule 2 to the Migration Regulations because the second applicant is not a family member of a person who holds a Subclass 187 visa on the basis of satisfying the primary criteria for the grant of such visa.

22. The Tribunal is satisfied that the second applicant does not satisfy cl. 187.311(a) of Schedule 2 to the Regulations.

    DECISION

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

    Mark O'Loughlin
    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.