Wong (Migration)

[2021] AATA 5336

Wong (Migration) [2021] AATA 5336 (23 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ka Wai Wong
Mr Hao Kun Giovanni Kuang
Master Chi Kiu Keaton Kuang

CASE NUMBER:  1836166

HOME AFFAIRS REFERENCE(S):          BCC2018/862093

MEMBER:De-Anne Kelly

DATE:23 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 23 November 2021 at 11:57am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Industrial Engineer – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls. 187.233, 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 22 February 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 Industrial Engineer.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination by Gala Pacific Pty Ltd was refused being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 8 September 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review. The hearing was assisted by an interpreter in the Cantonese to English languages.

7. The applicant was represented in relation to the review by Mr Iskander, a legal practitioner.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants satisfy cl187.233(3) which provides.

   (3) The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

12. On 5 November 2021, the Tribunal invited the applicant to comment on the information that on 27 September 2021 the decision to refuse the employer nomination was affirmed. The Tribunal advised that if it gave consideration to this it may find there is not an approved employer nomination to satisfy cl.187.233(3) and it may be part of the reason to affirm the visa refusal decision. The Tribunal may find that the secondary applicants do not meet the secondary visa criterion cl.187.311 and affirm their refusals as well. The applicant was invited to respond by 19 November 2021.

13. The applicant responded and advised the name of the nominee and the secondary applicants. It was noted that earlier the applicant had submitted material post hearing that went to the merits of the employer nomination decision but was not material to this case.

    The Tribunal finds there is no approved employer nomination to satisfy cl.187.233(3).

14. Therefore, cl 187.233 is not met.

15. 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.

16. Mr Hao Kun Giovanni Kuang and Master Chi Kiu Keaton Kuang were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

17. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

18. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicants a subclass 187 visa.

    DECISION

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

    De-Anne Kelly
    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.