Xu (Migration) - [2018] AATA 5903

Xu (Migration) [2018] AATA 5903 (8 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Dan Xu
Mr Junmin GAO
Mr Tianyao GAO
CASE NUMBER:  1723606
HOME AFFAIRS REFERENCE(S):           BCC2017/2119965
MEMBER:Stavros Georgiadis
DATE:8 April 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 08 April 2019 at 4:22pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – nomination – Corporate Services Manager (ANZSCO 132111) – nomination of position not approved – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994, Schedule 2, rr 1.13, 5.19, cl 187.223
CASES
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR
Varsi v Minister for Immigration & Anor [2018] FCCA 1280
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 15 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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, 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.
In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Corporate Services Manager (ANZSCO 132111) with Australian Group Investment Pty Ltd.
The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations as the nomination for the position was not approved at the time of the delegate’s decision - 187.223(2). The delegate also considered that the second and third named visa applicants were not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore did not satisfy cl.187.311.
The first named applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Xiang Ting Kong who is the current sole director of the applicant company that has nominated the position, Australian Group Investment Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicants meet the criteria for grant of the (Class RN) visas.
Nomination of a position
Clause 187.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.
In addition, this criterion also requires that:
·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 located in regional Australia (as defined in r.5.19(7))
·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.
The Tribunal has examined the visa applications on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant as a Subclass 457 visa holder is the nominator in the application for approval, Australian Group Investment Pty Ltd. Thus, the first named applicant meets cl.187.223(1)).
The oral evidence before the Tribunal from the applicant and the nominating employer is that the position has not been subsequently withdrawn and is still available to her (cl.187.223(3) and cl.187.223(5)).
The Tribunal accepts the oral evidence that the position is located in South Australia and therefore, satisfies the regional Australia location requirement in cl.187.223(4) which covers the whole State of South Australia. 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).
On 4 April 2019 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1718039 for the reasons set out in the Decision Record for that case dated 4 April 2019, refusing the nomination.
At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination, the applicants would not meet necessary criteria to satisfy cl.187.223 (specifically cl.187.223(2)) for the grant of the visas and that the application for the visas would, on that basis, be unsuccessful. The Tribunal invited the applicant to comment on, or respond to, the information that in such a decision refusing the nomination, this would be the reason or part of the reason, for affirming the decision that is under review. The Tribunal also advised the applicant that she could seek additional time to comment on, or respond to, the information and that the Tribunal would consider adjourning the review if it considered additional time to comment on, or respond was reasonably required.
There was no additional time requested to comment or respond. The applicant responded that the applicants understand and accept that in circumstances where the nomination for the position is not approved, it would not be open for their visa applications to be successful given approval of the nomination is an essential requirement for the grant of the visas. The Tribunal took steps again at the end of the hearing to ensure that the applicant understood this as an essential requirement.
As aforementioned, on 4 April 2019 the Tribunal affirmed the decision to refuse the nomination of the position by Australian Group Investment Pty Ltd. The Tribunal has not returned the matter for any further evidence or submissions as in these circumstances, and in view of the authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as the visas cannot be granted in the absence of an approved nomination and there is no practical injustice as “no useful result could ensue”[1].
[1] See R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR
Having considered the available evidence before it, the Tribunal is satisfied that the position of Corporate Services Manager (ANZSCO 132111) 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.187.223(2). The Tribunal finds that the nomination of the position to which the application relates is not approved.
Therefore, cl.187.223 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams (Direct Entry). As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
The Tribunal finds that the remaining visa applicants named in the application (the applicant’s spouse and child) are not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore, do not satisfy cl.187.311.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Stavros Georgiadis
Member

ATTACHMENT A
187.223(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 subregulation 5.19 (3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and
(c)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 Minister has approved the nomination.
(3)      The nomination has not subsequently been withdrawn.
(3A)    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.
(4)      The position to which the application relates is located in regional Australia.
(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.