Yin (Migration)

[2020] AATA 3034

Yin (Migration) [2020] AATA 3034 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Xiaozhou Yin

CASE NUMBER:  1819921

HOME AFFAIRS REFERENCE(S):          BCC2017/1411285

MEMBER:Warren Stooke AM

DATE:4 May 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 04 May 2020 at 12:35pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa - Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – marketing specialist – no approved business sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 18 April 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 (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 Marketing Specialist – ANZSCO Code 225113.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant did not provide evidence of an approved standard business sponsor.

6. The applicant appeared before the Tribunal on 1 April 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 inquired of the applicant whether she had read the delegate's decision of 4 July 2018 and she responded that she had read the decision. The applicant stated that she thought the previous employer had asked for help with the policy and that she did not understand the reason for the refusal.

8. The applicant confirmed to the Tribunal that she thought her agent had submitted the application that included a copy of the decision.

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 this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Nomination of a position

11. 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.

12. The applicant is a 27 year old from China, who stated she first came to Australia in 2009 or 2010, as a high school student.

13. The applicant provided evidence that she does not have family in Australia and that she had returned to China to visit family at the beginning of 2020 because of a family issue. The applicant could not say when she would be returning to China.

14. The Tribunal advised the applicant that the decision of the delegate, provided to the Tribunal by the applicant, noted that the applicant did not have a standard business sponsor, as required by cl.187.233 and the Tribunal asked whether that finding was correct. The applicant responded: “Yes.”

15. The Tribunal asked the applicant what his current status was and she replied: “No, I think currently I don’t (have a sponsor) because Opak has been refused”.

16. The applicant stated that the reason for the sponsor decision was unreasonable and that he had done the interview and confirmed that the sponsor already has employees.

17. The applicant gave evidence that she has a Bridging visa, but the agent said that she can’t apply.

18. The applicant provided evidence: “I understand my nomination has been refused three years ago”.

19. 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); 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.

20. On the basis of the evidence from the applicant, the Tribunal is satisfied that the applicant does not have an approved standard business sponsor. Accordingly, the Tribunal finds that the applicant does not satisfy cl.187.233(3)

21. Therefore, cl.187.233 is not met.

22. 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

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

    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.