Xu (Migration)

[2021] AATA 2690

Xu (Migration) [2021] AATA 2690 (7 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Peiyi Xu
Mr Jun Zhang

CASE NUMBER:  2100646

HOME AFFAIRS REFERENCE(S):          BCC2017/1062743

MEMBER:Warren Stooke AM

DATE:7 July 2021

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 7 July 2021 at 3:14pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Financial Investment Advisor – no approved nomination – no approved standard business sponsor – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 17 March 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 (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 Financial Investment Advisor – ANZSCO Code: 222311.

5. The delegate refused to grant the visas on 8 January 2021 on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa are not satisfied given that evidence was not provided that the applicant had an approved standard business sponsor.

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

7. On 10 May 2021, the Tribunal invited the applicant pursuant to s.359(2) to provide information regarding the following:

   “The application for approval of the nominated position made by SUCCESSFUL
   FINANCE SOLUTIONS PTY LTD (the nominator) was refused by a delegate of the
   Minister for Immigration. The nominator did not seek review of that decision with
   the AAT, this means that the nominator’s application for the nominated position has not been approved.”

8. The Tribunal required a response to this information to be provided to the Tribunal by 24 May 2021. As the applicant has not provided a response within that period of time, the applicant has thereby lost the right to a hearing and the matter will be reviewed on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has an approved standard business sponsor by the Minister.

11. The applicant is a 31 year old from China, who was granted a Bridging Visa B on 11 December 2017 that provides full permission to work and multiple entries for travel.

12. The applicant has sought to obtain a 187 Direct Entry visa for the nominated occupation of Financial Investment Advisor – ANZSCO Code: 222311.

13. On 5 November 2020, the Department issued a natural justice letter to the applicant. The correspondence advised the applicant of the following decision pertaining to the nominating employer’s application to sponsor:

    “The nomination submitted to us by SUCCESSFUL FINANCE SOLUTIONS PTY LTD listing you as their Nominee has been withdrawn. This means that your visa application cannot be approved.”

14. On the 8 January 2021, the delegate provided the applicant with a decision concerning the nominated sponsor, that contained the following finding in that case and requested comment:

    “On 12 May 2020, the nomination lodged by SUCCESSFUL FINANCE SOLUTIONS PTY LTD, being the nomination referred to in paragraph 187.233(1), was withdrawn by a delegate of the Minister for Home Affairs.

    On 05 November 2020, Ms Peiyi XU was issued with a natural justice letter inviting her to comment within 28 days. To date, no comment has been provided by Ms Peiyi XU in regards to the natural justice letter sent on 05 November 2020.

    Since the appointment to which the visa application by Ms Peiyi XU relates to has not been approved, Ms Peiyi XU does not satisfy Regulation 187.233(3).

    As a result, Ms Peiyi XU does not meet the requirements of regulation 187.233.”

15. The Tribunal notes that the applicant did not provide a response to the Department regarding the invitation to comment on the delegate’s decision relating to the refused nomination for the position of Financial Investment Advisor with SUCCESSFUL FINANCE SOLUTIONS PTY LTD (the nominator).

    Nomination of a position

16. 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.

17. 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.

18. In the absence of any response to the Tribunal’s correspondence of 10 May 2021, whereby the Tribunal invited the applicant pursuant to s.359(2) to provide information concerning the nominated position, the Tribunal is satisfied that the applicant does not have a standard business sponsor approved by the Minister, as required by cl.187.233.

19. Therefore, cl 187.233 is not met.

20. 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.

21. On the basis that the secondary applicant is not a member of a family unit that has satisfied the criteria to be granted a 187 Direct Entry Regional visa, it follows that the secondary applicant has not satisfied cl.187.311.

    DECISION

22. 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

    (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.