Yu (Migration)

[2018] AATA 5558

Yu (Migration) [2018] AATA 5558 (12 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jianjun Yu

CASE NUMBER:  1725996

DIBP REFERENCE(S):  BCC2017/2290863

MEMBER:Mr S Norman

DATE:12 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2018 at 9:35am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Sales and Marketing Manager – nomination refused – tribunal sought further comment – post-hearing submissions provided – extension refused – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 187.233, 187.242, 187.311

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 Immigration and Border Protection 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 28 June 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Sales and Marketing Manager’ (ANZSCO: 131112). 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.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 8 September 2017, the nomination lodged by the nominator (Milton Park Management P/L), and referred to in cl.187.233(1), was refused by a delegate of the Minister.

6. The applicant appeared before the Tribunal on 24 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl.187.233 of Schedule 2 to the Regulations.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). 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.

10. As noted above, the delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 8 September 2017, the nomination lodged by the nominator (Milton Park Management P/L), was refused by a delegate of the Minister. By letter of 8 September 2017, the Department requested the applicant’s comment about the refusal of the nomination application. The delegate noted there was a response received by the Department on 22 September 2017, but this related to the appointment of a new migration agent and the withdrawal of a de facto partner from the visa application (at the Tribunal hearing the applicant said this relationship had ceased – and that his now ex-partner was currently in Australia and held a temporary Student visa). However, the delegate then noted that no further material response was received. Therefore, as the applicant did not meet cl.187.233, the Regional Sponsored Migration Scheme (subclass 187) visa under the Direct Entry stream, had been refused.

11. Next, the delegate assessed the application within the other streams in this visa subclass. Regarding the Temporary Residence Transition Stream, the delegate noted that pursuant to cl.187.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination only sought to meet the requirements of r.5.19(4), the applicant was not found to meet the criteria in cl.187.223. Next, the delegate assessed the visa application under the Agreement stream. However and again, the nomination only sought to meet the requirements of r.5.19(4), and therefore, the applicant did not meet the criteria in cl.187.242. The delegate also considered the visa application pursuant to the secondary criteria (cl.187.311). After noting the applicant is not 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 was found not to be satisfied.

12. The delegate then refused the visa application for a Regional Employer Nomination (Permanent) (Class RN) visa.  

13. With the Tribunal, the applicant lodged:

    ·     a document titled a ‘Unified Social Credit Code’, which related to a business licence[1]

    ·     a notarial certificate certifying the “copy attached hereto is in conformity with a original copy of the ‘Business License’, issued to Huangshi Administration for Industry and Commerce on 23 November 2015[2]

    ·     a “enterprise Basic Registration Information Enquiry Sheet”[3]

    ·     An Offer of Employment from Milton Park dated 15 June 2016, setting out the terms and conditions of employment[4]

    ·     An Organisation chart for Huangshi Hotel Organisation in Mandarin script[5]

    ·     Educational achievements/curriculum vitae of the applicant[6]

    ·     News articles in Mandarin script[7]

    [1] Tribunal – folio 43 (reverse side).

    [2] Tribunal – folio 42.

    [3] Tribunal – folio 41 (reverse side).

    [4] Tribunal – from folio 39.

    [5] Tribunal – folio 34.

    [6] Tribunal – from folio 33.

    [7] Tribunal – folio 31.

14. Also lodged with the Tribunal was a document titled ‘Changing Forward – New Look of Haiguanshan Hotel’.[8] This appeared to be a promotion document for that hotel in China; and it also referred to the visa applicant as the manager of that hotel; that he is a successful businessman going through numerous hardships; that the hotel was being renovated; that it was focused on the price affordable, middle to lower level catering and accommodation market. Also lodged was a document titled ‘Creating a New Cake – Bring Forth New Ideas’;[9] that wedding ceremonies were a focus of the hotel; and that the visa applicant had invested in other areas.

    [8] Tribunal – folio 30.

    [9] Tribunal – folio 29.

15. Other submissions lodged with the Tribunal included:

    ·A vision statement[10]

    [10] Tribunal – from folio 91 (reverse side).

    ·A Certificate of Attendance for ‘Safety for Leaders’[11]

    [11] Tribunal – folio 88.

    ·Agent submissions dated 28 August 2018,[12] stating that ‘April – June 2018 – Total Gross Salary Payments were $611,100.26’; that ‘April-June 2018 – Mr Jianjun YU – Gross Salary Payments were $48,602.40’; and that the ‘Percentage of Mr YU’s Gross Salary Payments to the Total Gross Salary Payments of the Hotel (Milton Park) for April – June 2018 were 7.95%’. It was further claimed that their instructions were that the visa applicant was ‘definitely worth the amount he is to be paid’.

    ·Evidence in possibly Mandarin script[13] (though some of the evidence had been translated[14])

    ·An organisation chart[15]

    ·A Profit and Loss statement dated 31 December 2010, for the hotel the visa applicant managed in China[16]

    ·A Profit and Loss statement dated 31 December 2017, for the hotel the visa applicant managed in China[17]

    ·Other financial information for that hotel[18]

    ·A letter of recommendation dated 13 August 2018[19]; inter alia recommending the visa applicant

    ·Migration agent submissions dated 17 September 2018.[20] These provided inter alia the proposed work duties for the visa applicant; submissions as to why the visa applicant was chosen; evidence the visa applicant had been learning English; evidence of the value that may be added by the visa applicant; and submissions the nominating business had ‘contributed substantially to the region area’.

    ·An American Market Survey Report[21]

    ·A Chinese Market Survey Report[22]

    [12] Tribunal – folio 88 (reverse side).

    [13] Tribunal – from folio 85.

    [14] Tribunal – folio 80.

    [15] Tribunal – folio 81.

    [16] Tribunal – from folio 79.

    [17] Tribunal – from folio 75.

    [18] See Tribunal – from folio 78.

    [19] Tribunal – from folio 81 (reverse side).

    [20] Tribunal – from folio 72.

    [21] Tribunal – from folio 64.

    [22] Tribunal – from folio 59.

16. As noted above, the applicant attended a hearing with the Tribunal on 24 September 2018. Put very briefly, he said he had an ex-wife (now deceased) and four children in China (all his children presently reside with his parents in China); that he owned approximately 40% of the hotel he managed in Hubei province (China); that hotel had ‘more than 200 beds’; that the Milton Park business had not performed well in the last four or five years and as he had invested substantial money in the Milton Park business (more than AUD$6 million - which he explained was an important investment for him), and he wished to protect that investment and manage the Milton Park business in what he referred to as a competitive environment. He also said he owned a residence in Australia and had travelled here on vacation every year for several years; and that he liked Australia. The applicant conceded he was not competent in the English language but that the Milton Park business had organised an interpreter for him in Australia.  The Tribunal noted the country information indicated the Chinese economy had slowed considerably.[23] However, the applicant believed that business opportunities existed in Australia for Chinese investors, tourists, people looking for health checks, and for other reasons, and he wished to advertise to that market (including by the use of the ‘new media’ – including Google and Facebook).

    [23] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017, ‘ECONOMIC OVERVIEW’, p.7.

17. Post hearing submissions dated 25 September 2018[24] were lodged with the Tribunal. Amongst other things, these stated the applicant’s studies in China was a one year course for Directors, Senior Executives, General Managers, and Decision Makers of private enterprises; that payment of the fees for the course also allowed persons to attend classes in following years; the course consisted of a range of management topics; that Qinghua University Continuing Education Department issued a Certificate of Completion; that the applicant attended the course for another three years to ensure his understanding of the lessons learnt and for contacts; that the applicant was a member of the University Student Society for Directors Class; that the course included an ‘investigative/travelling trip overseas’; that the applicant wishes Milton Park (the business sponsor) to be included as a potential destination for ‘investigative travel’; and that the applicant proposes to use his connections to assist with the Milton Park business.

    [24] Tribunal – folio 74.

18. That being said, on 26 September 2018, the Tribunal affirmed the decision to refuse the nomination application lodged by the Milton Park business. By s.359A letter of 27 September 2018 (issued to his former authorised recipient), the Tribunal advised the applicant of the refusal of the nomination lodged by Milton Park, and explained why that, subject to his comments, this may be the reason or part of the reason for affirming this decision. The applicant was requested to respond in writing by 11 October 2018.

19. By emailed request of 11 October 2018, the applicant’s new migration agent advised they had ‘met with the applicant yesterday’, that they ‘only received instructions today’, that they now acted for the applicant, and in order to have ‘time to review the evidence provided in order to advise’ the applicant, they requested ‘an extension of 4 weeks to properly respond to the invitation to comment’. By letter of 11 October 2018 (dispatched by email on the same day), the Tribunal declined the request. Given the issues put for comment, and given the applicant had only apparently belatedly sought to change his migration agent (possibly on the day before his comments to the aforementioned s.359A letter were due), the Tribunal did not believe it necessary or reasonable to provide further time to respond.

20. The Tribunal also notes it was submitted inter alia that there was an ‘intention to pursue litigation’ by the applicant’s sponsor (or at least they were ‘actively considering appealing the AAT decision’[25]), and the Tribunal should therefore delay its present decision until the Federal Circuit Court ‘can make a decision on the related Nomination’. The Tribunal was then asked to re-consider its decision not to provide an extension of time within which to respond to the s.359A letter. The Tribunal understands it needs to act according to ‘substantial justice and the merits of the case’. However, the Tribunal also understands it needs to ‘pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick’ (see s.12A Administrative Appeals Tribunal Act 1975). The applicant’s new migration agent believed it was reasonable in the circumstances to delay making a decision in this case. Respectfully, and after considering all the evidence, the Tribunal is not satisfied this is correct. The Tribunal has therefore decided not to delay making its decision.

    [25] Tribunal – folio 83.

21. That said, as the delegate’s decision to refuse the nomination approval has been affirmed by the Tribunal, cl.187.233(3) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.187.233 is otherwise met. Therefore, cl.187.233 is not met.

22. Next, cl.187.311 requires inter alia that an applicant is a member 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 that visa. As the applicant is not the member of a family unit for the purposes of this visa application, I am not satisfied that cl.187.311 has been 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.

    Mr S Norman
    Member