Yang (Migration)

[2020] AATA 5245

Yang (Migration) [2020] AATA 5245 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhi Yang

CASE NUMBER:  1813264

HOME AFFAIRS REFERENCE(S):          BCC2016/1825524

MEMBER:Phoebe Dunn

DATE:7 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2020 at 10:00am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – related position nomination refused – refusal affirmed on review – no response to tribunal’s invitation to comment – decision under review affirmed

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

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 May 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café/Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by Yang Brothers Investments Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1) (the nomination), was refused by a delegate of the Minister on 6 March 2018 and as such there was no approved nomination.

6. The applicant appeared before the Tribunal by telephone on 2 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID‑19 pandemic. 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 applicants were given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent.

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 there is an approved nomination.

11. At the hearing, the Tribunal put information to the applicant in accordance with the requirements of s.359AA of the Act that the Tribunal considered, subject to any comments or response received, would be the reason or part of the reason for affirming that decision under review.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal had already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind. The Tribunal explained the relevance of the information and the consequences of it.

12. The particulars of the information are that the decision of the delegate dated 6 March 2018 to refuse the application for approval of the nominated position made by the nominator in respect of the applicant’s Subclass 187 visa application was affirmed by the Tribunal on review on 10 August 2020.

13. The Tribunal explained that this information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant, and that it is a requirement for the grant of a Subclass 187 visa that the position nominated in the visa application is the subject of an approved nomination, being the nomination referred to in cl.187.233(1) of the Regulations. The Tribunal further explained that if the Tribunal relied on this information in making its decision, the Tribunal may find that the position specified in the applicant’s visa application is not the subject of an approved nomination, which is a requirement of cl.187.233(3) for the grant of a Subclass 187 visa, and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review. The Tribunal explained that this would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the visa application. The Tribunal invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information.

14. In response, the applicant gave oral evidence about the background to this matter.  He stated that he started the business with his brother as a partnership in 2013 after he had finished his studies and had been working in the business since that time.  The applicant stated that he was not aware that the nomination application had been affirmed on review.  He stated that he could not understand what had happened, particularly given he was a Director of the business. The applicant requested additional time to comment on or respond to the adverse information so that he could speak with his representative, noting that he had not been able to contact her and that she had all the material with her.  The Tribunal granted the applicant two weeks to make written submissions, due on 16 November 2020.

15. The applicant did not provide any comment or response within the stipulated timeframe and did not seek and extension of time to do so.  Accordingly, the Tribunal wrote to the applicant on 17 November 2020 reiterating the adverse information put to the applicant at the hearing, explaining the relevance of it and the consequences of the Tribunal relying in the information, and noting that it had not received any comment on or response to the adverse information put to the applicant at the hearing.  In its letter, the Tribunal stated that it would not be making a decision on the matter before 1 December 2020 and stated that the applicant could make submissions to the Tribunal up to that date in support of his application, including responding to or commenting on the adverse information put to the applicant at the hearing, after which time the Tribunal would proceed to a decision.

16. To date the Tribunal as not received any further correspondence from the applicant. In these circumstances the Tribunal has decided to proceed to make a decision without further delay.

    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 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 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 the Subclass 187 visa on the basis of the nomination by Yang Brothers Investment Pty Ltd (the nominator), in respect of the nominated position of Café/Restaurant Manager, being the nomination referred to in cl.187.233(1) and the nomination in respect of which the applicant made his visa declaration.  The nomination application was refused and as such a delegate found that the applicant did not meet the requirements of cl.187.233(3) for the grant of the Subclass 187 visa as there was no approved nomination.

20. The nominator applied for review of the decision to refuse the nomination application but on 10 August 2020 the Tribunal affirmed the decision under review in respect of the nomination. This means that the related nomination has not been approved as required by cl.187.233(3).

21. As such, following careful consideration, 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.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    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.