Yang (Migration)

[2021] AATA 2264

Yang (Migration) [2021] AATA 2264 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Li Ping Yang
Mr Jaekyung Shim

CASE NUMBER:  1819390

HOME AFFAIRS REFERENCE(S):          BCC2016/3340636

MEMBER:Phoebe Dunn

DATE:16 June 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 16 June 2021 at 9:30am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Contract Administrator – no approved nomination – sponsor wants employment to continue – judicial review of nomination refusal – 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 8 October 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 (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 Contract Administrator (ANZSCO 511111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, because the related nomination application by WA Icon Tiling Pty Ltd (the nominator), being the nomination referred to in cl 187.233(1) (the nomination), was refused by a delegate of the Minister for Home Affairs on 17 May 2018 and as such there was no approved nomination.

6. By letter dated 3 May 2021, the Tribunal invited the applicants to a telephone hearing of this matter, scheduled for 8 June 2021.

7. By letter dated 5 May 2021, the Tribunal wrote to the applicants in accordance with the requirements of s 359A of the Act, inviting the applicants to comment on or respond in writing to information that the Tribunal considered was adverse to their case.  The Tribunal provided particulars of the information, being that on 17 February 2021, the Tribunal affirmed the decision on review of the delegate of the Minister to refuse the related nomination application lodged by the nominator in respect of the applicant. In its letter, the Tribunal explained the relevance of the information to the applicant, being that it is a requirement for the grant of the applicant’s Subclass 187 visa that the position specified in the visa application is the subject of an approved nomination. The Tribunal outlined the consequences of the Tribunal relying on the information in making its decision, being that the Tribunal may find, subject to any comments or response from the applicant, that the position specified in the applicant’s Subclass 187 visa application is not the subject of an approved nomination and as such the applicant does not satisfy a requirement for the grant of the visa and this would be the reason or part of the reason for affirming the decision under review.

8. In response, the applicants stated in an email received on 18 May 2021 as follows:

   I really appreciate your kind help and this important chance.

   We were very surprised to hear from you that the appeal for nomination was refused. I spoke with my employer about the email, as you mentioned that the appeal for nomination is refused. My employer was surprised. He didn’t have any knowledge about it.

   Actually, myself, I accidently found the email of AAT hearing in my junk mail box. And it is said, if in 7 days I did not handle the junk email, the email system will automatically delete this junk email. So, I was very lucky that, before the day of being deleted, accidently I head to junk mail and saw your email. I really appreciate that.

   Anyway, my employer has no idea how this happened as he never saw any information from AAT about the nomination so he contacted AAT last week. AAT send them the decision letter so my employer lodged an appeal in federal circuit court because they actually need me continue to work there.

   Could you please kindly advise us that what are our options, as I am still working with same employer and they want to keep my employment for at least another a few years. And they do need me as well.

   Is there any chance we could request that you could hold our case with Aat until they get any decision from federal circuit court? we think it won’t be long .The lawyer told them if their appeal approved, the case will go back to Aat again for the nomination appeal. We believe the case will be returned soon. Your kind help is crucially important for our whole families and our company. We would really appreciate for that. Thank you very much!

   And Could you please also suggest what should we prepare for our hearing conducting in June，which is extremely important for all of us .and we really appreciate that.

   Thanks so much for your time again. Looking forward to your suggestions. However, if any further information is required, please do not hesitate to contact us.

9. By email dated 19 May 2021, the Tribunal responded to the applicant, noting that it had carefully considered the applicant’s request to postpone the hearing until after the appeal process for the related nomination had been completed, but that for the reasons set out in the Tribunal’s email, the Tribunal had decided to proceed with the hearing as scheduled.  The Tribunal noted the President’s COVID-19 Special Measures Practice Directions (the Practice Directions) and the Tribunal’s obligation to fulfil its objective to provide a mechanism of review that is fair, just, economical, informal, quick and proportionate to the importance and complexity of the matter. The Tribunal referred to item 6.16 of the Practice Directions which provides that the Tribunal will not agree to a postponement unless there are good reasons to do so, and stated that in these circumstances it was not minded to delay its consideration of the matter indefinitely, noting that the determinative issue in this case was whether the related nomination had been approved.

10. The applicant appeared before the Tribunal on 8 June 2021 to give evidence and present arguments.

11. The hearing was held during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case whether there is an approved nomination.

14. At the hearing of this matter the applicant gave some background to her current circumstances. She stated that she understood that her case was dependent on the related nomination being approved. She noted that she had been working for her nominator for over six years and continued to do so, and that her nominator wanted her to continue to work there.  She detailed the stress she was under and her anxiety arising from the affirmation of the decision to refuse the nomination on review, stating that it was impacting on her mental health and she was not able to focus at work. She reiterated the information provided to the Tribunal in her written correspondence received on 18 May 2021, that the nominator had not been aware that the decision to refuse the related nomination was under active consideration before the Tribunal and was shocked to discover that the decision had been affirmed on review. She stated that the nominator had sought legal advice and had appealed the matter to the Federal Circuit Court.  She stated that she believed that the decision would be  remitted to the Tribunal for reconsideration and reiterated her request that the Tribunal delay making a decision on her case until after the Federal Circuit Court had made a decision on the nomination appeal. She requested that the Tribunal delay making a decision for a year or so to enable that to occur.

15. At the hearing, the Tribunal stated that it understood the circumstances were difficult, but regardless of any feelings of sympathy for the applicant, the Tribunal had no discretion in relation to the requirement in cl 187.233(3) that the related nomination be approved and that this was a question of fact. The Tribunal noted that in this case the decision in relation to the nomination had been affirmed by the Tribunal on review and that meant that there was no approved nomination and no longer a decision on review before the Tribunal.  The Tribunal stated that it had carefully considered the applicant’s request to delay making a decision on the Subclass 187 review application until after the Federal Circuit Court had made a decision on the nomination appeal, but that for the reasons set out in the Tribunal’s correspondence it was not minded to delay its decision making indefinitely, noting the Tribunal’s obligation to provide a mechanism of review that is fair, just, economical, informal, quick and proportionate to the importance and complexity of the matter. The Tribunal noted that the question before it was a question of fact, being whether the related nomination had been approved.  The Tribunal strongly suggested that the applicant obtain advice from a lawyer or a migration agent on her circumstances and options and consider making contact with the Department. The Tribunal reiterated that it understood the circumstances were difficult and notwithstanding feelings of sympathy for the applicant’s circumstances, it did not have discretion in relation to the requirement that the related nomination be approved. 

16. The applicant sought advice from the Tribunal about her options and whether she should appeal the decision on her case. In response, the Tribunal reiterated that it could not give the applicant legal advice but strongly suggested that she seek the advice of a lawyer or migration agent. The applicant thanked the Tribunal and stated that she hoped that the matter can be resolved quickly by the Federal Circuit Court as the matter was very stressful for her.

    Nomination of a position

17. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

18. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 of the Regulations); 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.

19. The applicant applied for a Subclass 187 visa application on the basis of the nomination made by the nominator, nominating her in the nominated position of Contract Administrator. The Subclass 187 visa was refused because the related nomination was refused by a delegate of the Minister on 17 May 2018, and as such the delegate found that the applicant did not meet cl 187.233(3) as there was no approved nomination.

20. The nominator applied for review of the decision to refuse the nomination. On 17 February 2021, the Tribunal affirmed the decision on review.  This means that there is no approved nomination and there is no longer an application for review in relation to the nomination before the Tribunal.

21. The Tribunal has carefully considered the applicant’s submissions relating to the circumstances surrounding the nomination application being affirmed by the Tribunal and the appeal process before the Federal Circuit Court in relation to that decision. The Tribunal notes that the question of whether there is an approved nomination is a question of fact and that it has no discretion in relation to the requirement in cl 187.233(3) of the Regulations. As such, and following careful consideration of the information before it, the Tribunal finds that cl 187.233(3) is not met.

22. Therefore, cl 187.233 is not met.

23. 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.

24. The only basis of the claim of the second named applicant is that he is a member of the family unit of the person who holds a Subclass 187 visa, granted on the basis of satisfying the primary criteria for the grant of the visa: cl 187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the application of the second named applicant must also be affirmed because he does not satisfy cl 187.311.

    DECISION

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

    Phoebe Dunn
    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.