WANG (Migration)

[2019] AATA 3974

WANG (Migration) [2019] AATA 3974 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lin Wang
Mr Zhongyi Li

CASE NUMBER:  1723619

HOME AFFAIRS REFERENCE(S):           BCC2017/1409179

MEMBER:De-Anne Kelly

DATE:15 August 2019

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 15 August 2019 at 3:08pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Travel Agency Manager – the nomination of the applicant was refused–  tribunal affirmed nomination application – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 April 2017. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Travel Agency Manager – ANZSCO  142116.

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 on the 11 August 2017 the nomination lodged by Live It Travel Pty Ltd was refused. This is the nomination referred to in cl.187.233(1), a copy of which is extracted in the attachment to this decision.

6. The applicants were invited to appear before the Tribunal on 23 May 2019 to give evidence and present arguments but did not attend the hearing. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review. The representative for the employer nomination refusal review appeared at the hearing. The applicants for the visa application refusal review did not appear at the hearing. No explanation was given for the non-appearance although the employer representative stated he had told them not to appear.

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 meets cl.187.233(3) which provides as follows:

   (3) The Minister has approved the nomination.

   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 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 of the Regulations); 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. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal affirmed the decision under review to refuse the nomination on the basis that the nominator had failed to satisfy r.5.19(4) of the Regulations.

12. On 25 July 2019, under s.359A of the Act the Tribunal sent to Ms Lin Wang and Mr Zhongyi Li, an invitation to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in their visa application is not the subject of an approved nomination. This would mean that they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

13. The Tribunal in response to the invitation above, received a letter dated 6 August 2019 from the employer representative that stated as follows:

    1.     As business is complexity position issue every individual may has different views in this case we are in Vulnerable Groups we don't know the judgement standards, the law doesn't have a clear definition of what we need to support our position. All documents related with this are reference only.

    2.      As government intended to tighten up immigration, this may lead department's case officer use higher standards when assessing the applications. The 187 visa is designed for support regional business, the majority of regional businesses are small business similar to us, so their financial figures and number of staff members are expected to be lower than those businesses operating in major cities.

    3.      As exchange rate of Australia dollars going down significantly in recent years, this causes outbound travel market declines. Outbound market is our main market and as far as I know that many small travel companies are closed. Despite of other small companies closure, we are confident with our ·financial performance. We believe that we have the financial ability to support the nominee for at least two years.

    4.     As employers' responsibility to our staff, the company will still offer the nominee a position of Travel Agency Manager if there is a chance to keep our word.

    5.      Our business has demonstrated an improvement on financial performance during the last two years, and the prospect of future success is promising. If we had became a bigger company we may create more jobs for local residents which I am sure it will contribute to the local economy.

    6.      The applicant has performed excellent as the role of Travel Agency Manager, and her outstanding Australian study in International Tourism and Hotel Management provides her the ability to undertake the nominated position.

    7.     Genius need the applicant is genius needs for the company that was purpose of 187 visa to support regional business.

    Again, we humbly request that the Tribunal reconsider the decision of nomination that if there any way to give a chance to applicant. Please consider this is last chance to the applicants, it should has significant impact of their life.

14. The Tribunal has carefully considered the employer representative’s comments above and finds that these statements do not address the fact there is no approved employer nomination since the Tribunal has affirmed the decision made by the delegate of the Minister to refuse the employer nomination application. The employer representative submitted a BAS statement for 1 April 2019 to 30 June 2019,on the 12 August 2019 for the nominating business Live It Travel Pty Ltd. The Tribunal had already affirmed the decision of the delegate of the Minister to refuse the employer nomination and prior to this had given the employer representative 14 days to provide additional evidence following the hearing. There was no request from the employer representative for an extension of time to provide further evidence and the Tribunal proceeded to a decision after carefully considering all the evidence provided. The Tribunal considered this BAS statement and finds it is not material to the Tribunal’s decision on Ms Lin Wang and Mr Zhongyi Li’s  visa application review.

15. The Tribunal in response to the invitation received the following comments from Ms Lin Wang and Mr Zhongyi Li in a letter dated the 6 August 2019:

    1.I had already live in Australia for more than 6 years that I was consider here as home it's significant life change if I had forced to live the country which I did nothing wrong and only reason that happens just because a position not been recognized.

    2.I already work for the company had a good relationship with colleague and client and my position was recognized by both of them. Also I believe my degree and my work performance it worth that position.

    3.The position which I work for is a real position, I can't understand why it not been recognized, in a company position is a business issue, it's not a topic of academic, use academic definition to judge a real world issue sometimes not work, as my study from university compare with my work experience, method of academic can be a reference but not all, business are more complex than academic.

    4.If the position was recognized by client and staff members it should real, there's no law prohibits any company has there position whatever it needs.

    There also has a long waiting time caused by government policy, more than 24 months waiting for visa decision that causing me live in a high risk life, the wait time are unusual, as published information shows before year 2017 the time of processing were approximately 4-8 months only. I was suffering from pressure of long waiting period as the decision has significant impact of my life. Again, I humbly request that the Tribunal reconsider the decision of nomination.

16. The Tribunal has carefully considered Ms Lin Wang and Mr Zhongyi Li’s comments above.

17. The Tribunal considers that the review applicants had the opportunity to present these comments at the hearing held on the 23 May 2019 but did not appear at the hearing. They gave no reason for their non-appearance although the employer representative at the hearing stated that he told them not to appear. The Tribunal understands that the decision will have a significant impact on the review applicants’ lives. The Tribunal acknowledges that the review applicants have lived in Australian for some six years and the review process has involved a long waiting time. Ms Lin Wang and Mr Zhongyi Li’s comments regarding the nominated position could have been made at the hearing but they did not appear at the hearing. Ms Lin Wang and Mr Zhongyi Li request the Tribunal to reconsider the decision on the nomination but The Tribunal has already affirmed the decision of the delegate of the Minister to refuse the employer nomination.   The Tribunal finds that these comments by Ms Lin Wang and Mr Zhonghi Li do not address the information there is no approved employer nomination since the Tribunal has affirmed the decision made by the delegate of the Minister to refuse the employer nomination application.

18. Since the Tribunal has affirmed the employer nomination decision under review there is no approved nomination to satisfy cl.187.233(3) and the visa applicants therefore do not meet 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 must be affirmed.

21. Mr Zhongyi Li was a secondary applicant on the application for a Regional Sponsored Migration Scheme (Subclass 187) visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. On the 15 September 2017, a delegate of the Minister refused the visa application of Mr Zhongyi Li on the basis he did not satisfy cl.187.311. Mr Zhongyi Li lodged an application with the Tribunal to review the decision to refuse the visa application. This clause provides as follows:

    187.311

    The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)made a combined application with the primary applicant.

22. Mr Zhongyi Li, the secondary applicant, applied as the husband and member of the family unit of the primary applicant Ms Lin Wang. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Sponsored Migration Scheme (Subclass 187) visa. Therefore, Ms Lin Wang is not a person who holds a Subclass 187 visa. Mr Zhongyi Li is a member of the family unit of the primary applicant, who does not hold a Subclass 187 visa. Mr Zhongyi Li therefore does not satisfy cl.187.311(a) and does not satisfy cl.187.311.

23. The secondary applicant Mr Zhongyi Li does not meet cl.187.311 and the Tribunal affirms the decision not to grant Mr Zhongyi Li a Subclass 187 visa.

    DECISION

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

    De-Anne Kelly
    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.