Xu (Migration) - [2017] AATA 1255

Xu (Migration) [2017] AATA 1255 (18 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yingda Xu
CASE NUMBER:  1608260
DIBP REFERENCE(S):  BCC2015/2500487
MEMBER:Danica Buljan
DATE:18 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 18 July 2017 at 12:58pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Graphic Designer – Nomination – Review application not lodged by sponsor
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.223, cl 187.233, cl 187.242, r 5.19(4)(h)(ii), 1.13A, 1.13B
CASES

Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Minister for Immigration and Citizenship v You [2008] FCA 241
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292
Minister for Immigration and Citizenship v You [2008] FCA 241
Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451

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 on 19 May 2016 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied to the Department of Immigration for the visa on 28 August 2015. 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, 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.
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 ‘Graphic Designer’ (ANZSCO[1] Code 232411). 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.
[1] ANZSCO: Australian and New Zealand Standard Classification of Occupations
The delegate refused to grant the visa on the basis that the applicant did not meet clause 187.233 of Schedule 2 to the Regulations. This was because the Department had refused to approve the nomination lodged by the applicant’s nominator, Total Hospitality Pty Ltd ATF total Hospitality Unit Trust (‘Total Hospitality Pty Ltd’).
The applicant lodged an application for review with the Tribunal on 7 June 2016, and a copy of the primary decision was included with the application for review.[2] The Tribunal has before it the departmental file[3] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]
[2]     AAT Case File 1608260 (T1), f.1-4
[3]     D1 -   Departmental file, BCC2015/2500487, folio numbered 1-62
[4]     AAT Case File 1608260, folio numbered 1-17
The applicant appeared before the Tribunal on 17 July 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
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 Minister has approved the relevant nomination for the purposes of clause 187.233 of the Regulations.
Nomination of a position
For applicants in the Direct Entry stream, clause 187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under subparagraph 5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under subregulation 5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must also 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 person who will employ the applicant is the person who made nomination: subclause 187.233(2);
·The nomination has been approved and has not been subsequently withdrawn: subclauses 187.233(3) and (4);
·The position is still available to the applicant: subclause 187.233(5);
·The visa application was made no more than six months after the nomination of the position was approved: subclause 187.233(6); and
·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 regulations 1.13A and 1.13B); or it is reasonable to disregard any such information.[5]
[5] Subclauses 187.223(3A); 187.233(4A) and 187.242(4A), as inserted by SLI 2015 No. 242 and applying to all new visa applications and visa applications not finally determined as at 14 December 2015.
According to the primary decision record the applicant provided with the application for review, and confirmed by him at the hearing, Total Hospitality Pty Ltd lodged an application for approval of an employer nomination in the direct entry stream for a Graphic Designer’ (ANZSCO Code 232411).[6]
[6] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
In addition, and as set out in the primary decision record, on 6 April 2016 the Department refused the employer nomination lodged by Total Hospitality Pty Ltd.[7] The applicant confirmed this matter during his oral evidence at the hearing. Specifically, the applicant stated that the relevant certifying body had refused the required approval because it felt that there were sufficient local graphic designers to undertake the tasks of the nominated position on a fulltime basis. As a result, the applicant stated that the nomination application lodged by Total Hospitality Pty Ltd was refused.
[7] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
At the hearing the applicant’s representative suggested that there must have been an administrative error on the part of the applicant’s sponsor, given that Total Hospitality Pty Ltd had not lodged an application for review with the Tribunal in relation to the refusal of its nomination application. As discussed with the parties at the hearing, the Tribunal observed that there was little in the evidence before it to suggest that Total Hospitality Pty Ltd had done so. The Tribunal also noted that speculation as to what the reasons for this might be did little to assist the resolution of the issues before it. Neither the applicant nor his representative disputed these matters at the hearing.
Accordingly, the Tribunal finds that the Minister has not approved the nomination to which the applicant’s visa application relates. Therefore, the Tribunal finds that the applicant does not meet the requirements of subclause 187.233(3) and, consequently, clause 187.233 at the time of decision.
The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. Although no specific claims have been made in respect of the other visa streams, the Tribunal has considered whether the applicant might meet the criteria for a subclass 187 visa in either the Temporary Residence Transition stream or the Agreement stream.
Clause 187.223 applies to applicants seeking a subclass 187 visa in the Temporary Residence Transition stream. Paragraph 187.223(1)(b) requires the position to be in respect of an applicant who is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa. At the hearing the applicant told the Tribunal that he did not hold a subclass 457 visa when he lodged his application for a subclass 187 visa on 28 August 2015.
As a consequence, the Tribunal finds that the applicant was not the holder of a Subclass 457 visa for the purposes of subclause 187.223(1). In addition, there is little in the evidence before the Tribunal to indicate that the Minister has approved a nomination for the purposes of the Temporary Residence Transition Stream at the time of decision. As a result, the Tribunal also finds that the applicant does not meet the requirements of subclause 187.223(2).
Therefore, given its findings in respect of subclauses 187.223(1) and (2), the Tribunal finds that the applicant does not meet clause 187.223 under the Temporary Residence Transition Stream at the time of its decision.
Clause 187.242 applies to applicants seeking a subclass 187 visa in the Agreement stream. Paragraph 187.242(1)(a) requires the position to which the application relates to be a position nominated by an employer in accordance with a labour agreement that is in effect and to which the employer is a party.
There is little in the evidence to indicate that Total Hospitality Pty Ltd has entered into a labour agreement, and the applicant and his representative did not suggest otherwise at the hearing. As a result, and on the basis of the evidence before it, the Tribunal also finds that the applicant does not meet the requirements of paragraph 187.242(1)(a), subclause 187.242(1) and clause 187.242 under the Agreement stream at the time of its decision.
The Tribunal has also taken into account the income statement for Total Hospitality Pty Ltd the applicant submitted on 17 July 2017.[8] However, there is little in this evidence to indicate that Total Hospitality Pty Ltd has had a nomination approved for the purposes of clauses 187.223, 187.233, or 187.242. As a consequence, the Tribunal places little weight on this evidence in its consideration of the issues before it.
[8] T1, f.16-17
The Tribunal asked the applicant and his representative if they had any further submissions or information they wished to provide in relation to the application for review. Both indicated that they had nothing further to add.
Accordingly, given the above findings, the Tribunal finds that the applicant does not meet the requirements in the Direct Entry stream, the Temporary Residence Transition Stream or the Agreement Stream at the time of decision, and the visa application must fail.
CONCLUSION
Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Danica Buljan
Member