Wu (Migration)

[2019] AATA 2059

Wu (Migration) [2019] AATA 2059 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Changchun Wu

CASE NUMBER:  1703739

HOME AFFAIRS REFERENCE(S):           BCC2016/1622852

MEMBER:Nicola Findson

DATE:23 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 23 April 2019 at 3:51pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Welder (First Class) –no approved nomination – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 1.13, 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 Immigration and Border Protection 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 3 May 2016. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Welder (First Class).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination in relation to the applicant was not approved.

6. The applicant appeared before the Tribunal on 27 March 2019, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements in cl.187.233.

   Nomination of a position

9. 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.

10. 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.

11. The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review. It records that the nomination application of which the applicant was the subject, lodged by ITI Pty Ltd acting for the ITI Family Trust, was refused on 15 February 2017. Accordingly, the delegate found that the nomination was not approved and cl.187.233(3) was not met.

12. At the hearing, the Tribunal explained to the applicant the requirements of  cl.187.223(3). The applicant indicated he understood that he was not the subject of an approved nomination.  The applicant told the Tribunal that he was aware that the nomination application lodged by ITI Pty Ltd acting for the ITI Family Trust was not approved by the Department.  He also indicated that he was aware that ITI Pty Ltd acting for the ITI Family Trust did not apply for review of the Department’s decision.  He told the Tribunal that he had spent a long time in Australia, but unfortunately his “business situation has changed”.  The Tribunal explained that if it found he was not the subject of an approved nomination it would have to affirm the delegate’s decision.  The applicant indicated he understood.

13. Following the hearing, on 2 April 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act, and invited him to comment or respond to information that his visa application was refused by the Department on 15 February 2017 because the nomination application lodged by his sponsoring employer, ITI Pty Ltd acting for the ITI Family Trust was not approved; the decision not to approve the nomination application was made by the Department on 15 February 2017; and ITI Pty Ltd acting for the ITI Family Trust did not apply for a review of this decision to the Tribunal. The applicant did not respond to the Tribunal’s letter by the due date of 16 April 2019.

14. On the basis of the evidence before it, the Tribunal finds that at the time the applicant lodged his visa application on 3 May 2016, he was the subject of a nomination application by ITI Pty Ltd acting for the ITI Family Trust, for the position of Welder (First Class).  The Tribunal further finds that the nomination application by ITI Pty Ltd acting for the ITI Family Trust was refused by the Department on 15 February 2017, and there is no record that it was the subject of an application for review to this Tribunal.

15. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved. Given this, the Tribunal finds that the requirements of cl.187.233 are not met.

16. 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

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

    Nicola Findson
    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.