Wang (Migration)

[2019] AATA 3821

Wang (Migration) [2019] AATA 3821 (25 June 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rongfei Wang

CASE NUMBER:  1813904

HOME AFFAIRS REFERENCE(S):           BCC2016/1970301

MEMBER:Stavros Georgiadis

DATE:25 June 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 25 June 2019 at 4:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – 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 Home Affairs 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 7 June 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 Café or Restaurant Manager (ANZSCO 141111) with MTM Holdings Pty Ltd ATF MTM Holdings Unit Trust.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination of the position cl.187.233(3).

6. The applicant appeared before the Tribunal on 25 June 2019 to give evidence and present arguments.

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 visa applicant meets the criteria for grant of the (Class RN) Subclass 187 visa – including whether there is an approved nomination for the position. 

   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. The Tribunal notes from the visa application on the Department file that the required declaration has been made in relation to the position nominated by the employer sponsor (cl.187.233(1)).

13. The Tribunal is satisfied, from the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Café or Restaurant Manager (ANZSCO 141111) with MTM Holdings Pty Ltd ATF MTM Holdings Unit Trust. (cl.187.233(2)).  

14. At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination he would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visa and that the application would, on that basis, be unsuccessful. The Tribunal invited the applicant to comment on, or respond to, the information that a decision had been made by the Tribunal on 24 June 2019 to refuse the nomination and that this would be the reason, or part of the reason, for affirming the decision that is under review.  The Tribunal also advised the applicant that he could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered the applicant reasonably needed additional time to comment on, or respond to, the information. 

15. The applicant did not require additional time to comment or respond.  The applicant told the Tribunal that he was aware of the refused nomination but considers that the actions required to meet the nomination requirements were all up to the employer and outside of his control. The Tribunal put to the applicant that in circumstances where there is no approved nomination, it would not be open for his visa application to be successful as approval of the nomination is one of the requirements for the grant of the visa under cl.187.233(3). The applicant responded, when asked, that he understands and accepts that there is no approved nomination for the position.

16. Having considered the available evidence before it, the Tribunal is satisfied that the nominated position is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.  

17. Therefore, cl.187.233 is not met.

18. 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

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

    Stavros Georgiadis
    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.