WANG (Migration)

[2023] AATA 3453

WANG (Migration) [2023] AATA 3453 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs LI WANG
Mr Weiping SONG
Miss Tianxin SONG

CASE NUMBER:  1933948

HOME AFFAIRS REFERENCE(S):          BCC2018/983741

MEMBER:Namoi Dougall

DATE:20 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the first and third named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

In relation to the second named applicant, the Tribunal does not have jurisdiction in this matter.

Statement made on 20 September 2023 at 12:13pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – café or restaurant manager – second named applicant was not in the migration zone at the relevant time –no approved nomination – tribunal affirmed nomination application – not the subject of an approved nomination – no jurisdiction in relation to the second applicant– decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 379

Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 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 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 1 March 2018. 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, 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 Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application lodged by The Trustee for the Dyk Family Trust (the nominating business) was refused by a delegate for the Minister on 19 October 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. The applicant appeared before the Tribunal on 19 September 2023 to give evidence and present arguments: The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(7A), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s 347(2)(a) and (3A). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.

8. The Department’s movement records show that the second named applicant was not in the migration zone at the time the Department made the decision to refuse to grant the Subclass 187 visas on 25 November 2019 or when the application for review of those decisions was lodge with the Tribunal on 29 November 2019. The Tribunal finds that the second named visa applicant was not in the migration zone at the relevant time. As such, the application for review, in so far as it relates to the second named visa applicant, is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

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 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.

2. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

3. On 5 September 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on at the hearing or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 187 visa on the basis of a nomination of a position made by the nominating buisness and that on 19 October 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision not to grant the Subclass 187 visa on 15 June 2023.

4. The Tribunal’s letter also stated that if the Tribunal made the above findings, it would also find that that the nomination of the position lodged by your nominating employer and which the applicant relied on when lodging their visa application, has not been approved. If the Tribunal makes this finding, then it will also find that the applicant does not meet all of the requirements for the grant of a Subclass 187 visa, particularly cl.187.233 and the delegates decision not to grant you a Subclass 187 visa will be affirmed.

5. At hearing the Tribunal explained the above criteria, particularly the criterion requiring the position to be the subject of an approved nomination was explained to the applicant comprehensively. The applicant confirmed that he understood these requirements. Further, the Tribunal explained that the nomination must be the one that was the subject of the declaration made as part of the current visa application. The applicant confirmed that she understood this requirement. The documentation indicated that the applicant was working for his nominating business during this period.

6. At the hearing the applicant stated she did not fully understand so the Tribunal explained the adverse information again and the criteria the applicant need to meet. The application stated that she understood the criteria she was required to meet and the adverse information. The applicant stated that she signed and employment contract in December 2017 and after that the Subclass 187 visa application was submitted. The employer wanted her to start work very soon so a Subclass 482 was submitted and approved. It would have not been approved if the applicant had not met all of the criteria. The applicant then stated she passed the IELTS test and has three year’s work experience which means she has passed the criteria for the Subclass 187 visa. Also, the applicant stated that she has meet all criteria for a Subclass 482 visa so the applicant cannot understand why she cannot be granted a Subclass 187 visa.

7. At the hearing the Tribunal explained that the nomination of position of Café or Restaurant Manager lodged by her nominating buisness has not been approved, therefore, the applicant cannot meet the criteria of cl.187.233. The applicant stated that she does not understand why her nominating business was refused when the nomination related to the Subclass 482 was approved, as the criteria is the same. The Tribunal explained that there are differences in the criteria. The Tribunal suggested that the applicant seek migration advice.

8. On 10 October 2019, the Department the Department refused the nomination of position which the applicant’s Subclass 187 visa application relates. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision on 15 June 2023. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination.

9. Therefore, cl 187.233 is not met.

10. 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.

11. As the primary applicant is found not to have met the prescribed criteria for a subclass 187 visa, the third named applicant as a member of the applicant’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the third named applicant, does not satisfy cl.187.311.

DECISION

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

Namoi Dougall
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.