Tong (Migration)

[2020] AATA 741

Tong (Migration) [2020] AATA 741 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Anh Tong

CASE NUMBER:  1726008

HOME AFFAIRS REFERENCE(S):          BCC2016/3962351

MEMBER:Mark Bishop

DATE:19 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 19 March 2020 at 1:02pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Wholesaler – subject of an approved nomination – nomination application refused – 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 Immigration and Border Protection 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 24 November 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 (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 Direct Entry stream, to work in the nominated position of Wholesaler ANZSCO133312.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 27 February 2020 to give evidence and present arguments. The nominator in related case number 1724146 also gave evidence.The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant was represented in relation to the review by his 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

9. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

   Nomination of a position

10. 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.

11. 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.

12. On 27 February 2020 in related case number 1724146, an application by C W Poh and D Trang as nominator the Tribunal determined the nominator did not meet the requirements of r.5.19(4)(d)(i) and affirmed the decision under review to refused the nomination.

13. The material matter for the Tribunal to determine is whether the applicant has an approved nominating sponsored and position. Given the decision of the Tribunal in Case number 1724146 the applicant does not have an approved nominating sponsor and position.

14. On 4 March 2020 the Tribunal forwarded to the applicant correspondence under s.359(2)/s.359A of the Act. The Tribunal advised as follows:

    ·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:

    oOn 27 February 2020 in an application for review by C W Poh and D Trang as nominator the Tribunal affirmed the decision to refuse the nomination

    oThis information is relevant to the review because cl.187.233(3) of Schedule 2 to the Migration Regulations requires the "...Minister has approved the nomination".

    oIf the Tribunal relies on this information in making its decision, it may lead it to believe you do not meet cl.187.233(3). If the Tribunal so finds, this information would be a reason, or part of a reason, for it to affirm the decision of the Department of Home Affairs in your case and refuse your application for a Subclass 187 visa.

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

    Invitation to provide information

    ·You are also invited to provide the following information in writing:

    oYou are invited under s.359(2) to provide in writing information demonstrating that you are the subject of a nomination approved by the Minister under r.5.19 as required by Cl.187.233(3) of Schedule 2 to the Migration Regulations

15. The applicant did not respond to this request.

    Conclusion

16. The Tribunal has determined there is no approved nominated sponsor for the position with which the applicant can be engaged. Accordingly the applicant does not meet the requirements of cl.187.233.

    DECISION

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

    Mark Bishop
    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.