Wong (Migration)

[2020] AATA 3350

Wong (Migration) [2020] AATA 3350 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chun Kin Wong

CASE NUMBER:  1928804

HOME AFFAIRS REFERENCE:               BCC2018/1242598

MEMBER:Lilly Mojsin

DATE:26 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2020 at 9.10 am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Marketing Specialist – 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 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 15 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 (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 review, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Marketing Specialist [ANZSCO 225113].

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(4) of Schedule 2 to the Regulations because the nomination made by Bamora Holdings Pty. Ltd [ABN 77 063 739 891] had been withdrawn.

6. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this review and the individual circumstances of the applicant.

7.    The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

1. The applicant wrote to the Tribunal seeking an adjournment and advising that he would like to request a face to face hearing instead of a phone hearing as he does not feel comfortable about a phone interview, it makes him unnecessarily nervous and unperformed. This will greatly affect him. 

2. The Tribunal, by letter of 12 June 2020, advised the applicant that it would arrange for the hearing to be held by video, using Microsoft Teams software, in the event that he would prefer not to attend by telephone. He was asked to advise of his preferred mode of attending the hearing at the earliest date. The applicant did not respond.

3. The applicant attended the Tribunal hearing, by telephone.

4. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant said that he received a job offer to commence on a certain date. The job did not go forward and he tried to contact the employer Matt but he did not respond. He confirmed that the company did not supply documents to the Department for the nomination application as the financial situation of the company was not good. He is aware that the Department rejected Bamora Holdings Pty Ltd’s application.

6. The applicant indicated that he wished to stay in Australia and would like to make another visa application without going offshore. He does not wish to go back to Hong Kong due to the current situation there.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 187.233 as applicable in this review 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.

8. 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.

9. The applicant acknowledged that the nomination by Bamora Holdings Pty. Ltd was withdrawn.

10. The Tribunal is satisfied the position to which the application relates has not been approved.

11. Therefore, cl.187.233 is not met.

12. 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

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

    Lilly Mojsin
    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.