Wang (Migration)

[2021] AATA 3770

Wang (Migration) [2021] AATA 3770 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xinyu Wang
Ms Chengxi Zhou

CASE NUMBER:  1912846

HOME AFFAIRS REFERENCE(S):          BCC2017/2243331

MEMBER:Karen McNamara

DATE:15 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2021 at 12:18pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 25 June 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 (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 Mr Xinyu Wang (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

5. The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required, Mr Xinyu Wang to be the subject of an approved nomination. The delegate found that the nomination lodged by Park Lok Pty Ltd (the nominator) was refused on 9 April 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Ms Chengxi Zhou could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 23 May 2019 for review of the delegate’s decision.

9. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

12. 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.

13. 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.

14. On 5 August 2021, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 to appear before the Tribunal via telephone on 7 September 2021 at 9:30 am (SA time) 10:00 am (NSW time).

15. On 13 August 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

16. The information related to information before the Tribunal that shows on 15 May 2020, the Tribunal found it had no jurisdiction to review the application made by Park Lok Pty Ltd and for this reason the original decision made by the delegate from the Department of Home Affairs is unchanged.

17. The Tribunal’s letter of 13 August 2021 additionally stated the following;

    ‘ The above information is relevant because cl.187.233(3) requires that the nomination

    made in relation to you by your nominating employer has been approved.

    If the Tribunal relies on this information, it may find that the nomination in relation to
    you has not been approved and consequently the decision under review would be
    affirmed. You must have a related nomination to be able to be granted the visa.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 27 August 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 27 August 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 27 August 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 5 August 2021.
    Please note, however, that if you do not respond to this letter within the date
    specified or within any extended timeframe, you will lose your right to attend the
    scheduled hearing and it will be cancelled. The Tribunal will proceed to make a
    decision on the review without taking any further action to obtain your views on
    the information.’

18. This invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by        27 August 2021, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act.

19. On 27 August 2021, the applicant’s authorised representative and migration agent (the representative) advised the Tribunal by email “ We agree there is no jurisdiction to review the application.”

20. On 3 September 2021, the Tribunal contacted the representative to confirm in the absence of a response to the hearing invitation, whether the applicant would be attending the scheduled hearing on 7 September 2021. The representative advised the Tribunal that he did not know the applicants’ intentions as he had not received a response. The representative stated that he would contact the applicants again and inform the Tribunal in writing.

21. On 3 September 2021, the representative advised the Tribunal by way of email, that he had forwarded the invitation to attend the hearing to his client but had not received a response from his client.

22. On 7 September 2021, the Tribunal contacted the applicant at 9:50am (NSW time) to commence the scheduled hearing for 10:00 am (NSW time). The applicant advised the Tribunal that he would not be attending and that he had informed his representative of same.

23. On 10 September 2021, the representative by email requested the matter be decided on the papers.

24. In accordance with the representative’s request, the Tribunal has resolved this matter on the papers.

25. On the evidence before it, The Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

26. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

27. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa.

28. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicant Ms Chengxi Zhou as a member of Mr Xinyu Wang’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.187.311.

29. The applicants have 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

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

    Karen McNamara
    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.