Wei (Migration)

[2020] AATA 1332

Wei (Migration) [2020] AATA 1332 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yong Wei
Ms Yanpei Li

CASE NUMBER:  1834508

HOME AFFAIRS REFERENCE(S):          BCC2017/2811204

MEMBER:Warren Stooke AM

DATE:29 April 2020

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 29 April 2020 at 7:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Mechanical Engineer – subject of an approved nomination – 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 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 7 August 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 Direct Entry stream, to work in the nominated position of Mechanical Engineer (ANZSCO 233512).

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant did not provide evidence of an approved standard business sponsor.

6. The applicants appeared before the Tribunal on 1 April 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

8. At the commencement of the hearing the Tribunal confirmed that the applicant was prepared to proceed with the hearing by telephone and consent was provided by the applicant.

9. The Tribunal inquired of the applicant whether he had read the delegate's decision of 6 November 2018 or not and that he understood the content of the decision. The applicant submitted that he could not recall the detail of the delegate’s decision but the decision has been made.

10. The applicant confirmed to the Tribunal that his agent had submitted the application and that he was not sure if that included a copy of the decision.

11. The applicant was granted an adjournment, as he initially expected he would have to fly to Melbourne, however the Tribunal advised the applicant he could undertake the hearing by telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

14. The applicant is a 36 year-old from the Peoples Republic of China, who gave evidence that he arrived in Australia on a Visitor’s visa in 2015. He stated that his wife had formerly studied in Australia and that he does not have any other family in Australia, apart from his one-year old child.

15. The Tribunal asked the applicant when he intended to return to China and he stated that it depends on the pandemic and that the current flight costs are more than what he could afford.

16. The applicant stated that he last returned to China in August-September 2019.

17. The applicant gave evidence that he was currently working as an oilfield engineer with Halliburton off the coast of Queensland and that this was his occupation in China.

18. The Tribunal asked the applicant, if he has an approved standard business sponsor and the applicant responded that he was not sure if his sponsor has been approved by the Department. He also claimed that he had fulfilled all requirements for a 187 visa and that the company promised to apply for approval.

19. As no job was provided, the applicant stated that he was now working for Halliburton as an oil rig worker.

20. The applicant advised that he hoped his agent would provide professional advice but he delayed and now that has got him into a difficult situation and he decided to swap agent to get more professional help.

21. The applicant stated that he was – “Not entirely sure regarding this because dealt with by agent”.

22. The Tribunal advised the applicant that it can’t give advice and that the applicant will have to talk to his agent.

23. The applicant requested the Tribunal grant an adjournment and the Tribunal advised it was not prepared to grant an adjournment given that the applicant has had since November 2018 to prepare for the hearing.

24. The Tribunal confirmed with the applicant that he had given evidence to the Tribunal, that he does not have an approved standard business sponsor.

25. The applicant asked if the Tribunal could give advice that he attended the hearing to show the agent.

    Nomination of a position

26. 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.

27. 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.

28. The applicant gave evidence that he does not have an approved standard business sponsor and that he is currently working with Halliburton in the oil and gas industry. As such the Tribunal is satisfied that the applicant has not met cl.187.233

29. Therefore, cl.187.233 is not met.

30. 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.

31. As the primary applicant has not provided the Tribunal with evidence that he has an approved standard business sponsor, as required under cl.187.233 to satisfy the requirements to be granted a 187 visa, it follows that the secondary applicant is not a member of a family unit that has satisfied the required criteria for the grant of a visa

    DECISION

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

    Warren Stooke AM
    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.