Xia (Migration)

[2018] AATA 2187

Xia (Migration) [2018] AATA 2187 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dingkui Xia
Mrs Chenxin Dai

CASE NUMBER:  1700893

DIBP REFERENCE(S):  BCC2016/747862

MEMBER:Stavros Georgiadis

DATE:9 May 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 9 May 2018 at 1:07pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 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 22 February 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Cook (ANZSCO 351411). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations Schedule 2 to the Regulations as the appointment nomination to which the visa application relates had not been approved (cl.187.233(3)).

6. The applicants appeared before the Tribunal on 3 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Director, SC Lin Pty Ltd ATF Ang Family Trust, Shichuan Lim, and his spouse Ms Hong Yu who is the restaurant manager of the business for nomination of the occupation in the related matter 1621313. The related matters were heard together.  

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

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 visa applicants meet the criteria for grant of the (Class RN) Subclass 187 visas.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. Where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

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 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.

12. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor (cl.187.233(1)).

13. The Tribunal is satisfied, from the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, SC Lin Pty Ltd ATF The Ang Family Trust.  Thus the applicant meets cl.187.233(2). The oral evidence before the Tribunal from the nominating employer is that the position has not been subsequently withdrawn and is still available to the applicant (cl.187.233(4) and cl.187.233(5)). 

14. At the hearing on 3 May 2018 the Tribunal made an oral decision at 11:40am (SA time) to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1621313 for the reasons set out in the Decision Record for that case dated 3 May 2018, refusing the nomination.

15. At the hearing after the above decision was made relating to refusal of the nomination, the Tribunal put to the applicants, in accordance with the procedure under s.359AA of the Act, that without an approved nomination, the applicant would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visa and that the applications would, on that basis, be unsuccessful. The Tribunal invited the applicants to comment on, or respond to, the information that a decision had been made by the Tribunal earlier on 3 May 2018 to refuse the nomination and that this would be the reason, or part of the reason, for affirming the decision that is under review. The Tribunal also advised the applicants that they could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered the applicants reasonably needed additional time to comment on, or respond to, the information.

16. The applicants did not require additional time to comment or respond.  The applicant conveyed to the Tribunal that he understands and accepts that in such circumstances, it would not be open for his visa application to be successful given approval of the nomination is one of the requirements for the grant of the visa.

17. Having considered the available evidence before it, the Tribunal is satisfied that the position of Cook (ANZSCO 351411) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.

18. Therefore, cl.187.233 is not met.

19. 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 in respect of all applicants for the visa.

    DECISION

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

    Stavros Georgiadis
    Member