Vu (Migration)

[2018] AATA 4193

Vu (Migration) [2018] AATA 4193 (13 September 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tuan Anh Vu

CASE NUMBER:  1703114

HOME AFFAIRS REFERENCE(S):           BCC2016/130332

MEMBER:Sheridan Lee

DATE:13 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2018 at 3:24pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – approval of nomination – nomination refused – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), ss 65, 359A, 359C
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 8 January 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). 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 Sales and Marketing Manager (ANZSCO 131112). Business Development Manager is a specialisation of Sales and Marketing Manager.

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 application for nomination lodged by Dryz Pty Ltd in respect of the applicant was refused by the Department of Home Affairs (the Department).

6. The applicant appeared before the Tribunal on 3 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kevin Vu and Mr James Luo, Directors of Dryz. The Tribunal notes that Mr Tuan Anh Vu is also a Director of Dryz and provided evidence in that capacity at both the hearing on 3 May 2018 and a subsequent hearing in relation to the nomination application, held on 5 July 2018.

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

Nomination of a position

1. 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.

2. On 15 August 2018, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The particulars of the information were:

   ·

   On 13 October 2016, a delegate of the Minister for Immigration rejected an application by Dryz Pty Ltd to nominate the position of Business Development

   
   

   Manager in respect of the applicant. Dryz applied to the Tribunal for a review of that decision.

   ·On 13 August 2018, the Tribunal affirmed the decision not to approve the nomination.

3. The letter outlined that the information was relevant to the review because under cl.187.233 of Schedule 2 of the Regulations it is a requirement that the position specified in the visa application be subject to an application for nomination.

4. It was also explained that if the Tribunal was to rely on the information it would find that the position specified in the visa application is not the subject of an approved nomination. This would mean that he would not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision that is under review.

5. The letter invited comments or a response by 29 August 2018, noting that an extension of time to respond could be requested prior to that date.

6. On 21 August 2018, the Tribunal received a request to extend the time to provide comment or response by 14 days from the original due date. The Tribunal granted the requested extension, providing the applicant until 12 September 2018.

7. On 13 September 2018, the Tribunal received advice from the applicant’s representative confirming that the applicant wished to proceed with his review application as his nominating employer had commenced an application for judicial review. The correspondence provided no comment on the information set out in the s.359A letter.

8. The Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.  Accordingly, as the applicant failed to give the information requested within the prescribed period, he has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

9. Nevertheless, the Tribunal notes that the applicant attended a hearing on 3 May 2018. At that time, he was advised that his nomination was refused by the Department as he did not meet the requirement in cl. 187.233 of Schedule 2 of the Regulations. On that basis, his visa application for review essentially lived or died on the outcome of the nomination.

10. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

11. As the decision to refusing the nominating employer’s application was affirmed by the Tribunal on 13 August 2018, the Tribunal finds that the applicant does not meet the requirement in cl.187.233(3). Therefore, cl.187.233 is not met.

12. 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

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

Sheridan Lee
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.