Wang (Migration) - [2022] AATA 4293

Wang (Migration) [2022] AATA 4293 (28 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Zi Wang
Mr Zhaoqiang Li
Miss Xinli Wang
Master Xinyan Li
REPRESENTATIVE:  Mr Jiang Liu (MARN: 0428586)
CASE NUMBER:  1919536
HOME AFFAIRS REFERENCE(S):          BCC2017/4740646
MEMBER:Jade Murphy
DATE:28 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 28 November 2022 at 3:46pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – hair or beauty salon manager – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment and loss of entitlement to hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASE
Singh v MIBP [2017] FCAFC 67
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 12 December 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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 Hair or Beauty Salon Manager (ANZSCO 142114).
The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, Day Spa Co Pty Ltd, was refused by the Department and as such, there was no approved nomination.
On 10 November 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were that the application for review of the related nominated position, made by Day Spa Co Pty Ltd, was affirmed in proceedings before the Tribunal. This means that the nomination application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wang (Migration)

Details

AGLC: Wang (Migration) [2022] AATA 4293
Case: [2022] AATA 4293
Decision Date: 28 November 2022

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, direct entry stream, by an applicant seeking employment as a hair or beauty salon manager. The applicant's related nomination application had been refused by a delegate of the Minister, and this refusal was subsequently affirmed on review by the Tribunal. The applicant did not respond to the Tribunal's invitation to comment and consequently lost their entitlement to a hearing.

The primary legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination, as required by clause 187.233 of the Migration Regulations 1994. This clause, as applicable, stipulated several conditions, including that the nomination must have been approved and not subsequently withdrawn, and that the applicant must be identified in the nomination application where the nomination was made on or after 1 July 2017.

The Tribunal reasoned that the employer nomination lodged by Day Spa Co Pty Ltd was refused by a delegate on 10 June 2019, and this decision was affirmed by the Tribunal on 10 November 2022. As the nomination remained refused, the Tribunal concluded that the criterion under clause 187.233 was not met. Since the applicant had only sought to satisfy the criteria for the direct entry stream and had failed to meet this essential requirement, the Tribunal affirmed the decision under review. The Tribunal therefore affirmed the decision not to grant the applicant the Regional Employer Nomination (Permanent) (Class RN) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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. 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 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. Based on the information before it, and as put to the applicants in the s.359A letter dated 10 November 2022, the Tribunal notes the following;·On 10 June 2019, the nomination lodged by Day Spa Co Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister;·Day Spa Co Pty Ltd lodged an application for Tribunal review on 28 June 2019; and·On 10 November 2022, the Tribunal decided to affirm the delegate’s decision to refuse the employer nomination. The nomination remains refused. As the relevant nomination has been refused and affirmed on review, the Tribunal finds that the position to which the application relates is not the subject of an approved nomination. Therefore, cl 187.233 is not met. 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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Jade MurphyMemberATTACHMENT A187.233(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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Jade MurphyMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

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