Zhang (Migration)

[2019] AATA 3395

Zhang (Migration) [2019] AATA 3395 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhao Zhang
Ms Siwen Liu

CASE NUMBER:  1817884

HOME AFFAIRS REFERENCE(S):          BCC2015/3734421

MEMBERS:Terrence Baxter (Presiding)

Bridget Cullen

DATE:2 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 02 July 2019 at 4:09pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination refused – no response received – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C,
Migration Regulations 1994 (Cth), Schedule 2 cls 187.233, 187.311

CASES

Hasran v MIAC [2010] FCAFC 40

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 (the Act).

2. The applicants applied for the visas on 7 December 2015. 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 first named applicant Zhao Zhang (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Office Manager.

5. The delegate refused to grant the visas on 30 May 2018 because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination by LS Group Pty Ltd (the nominator) had not been approved.

6. On 12 June 2019, the Tribunal wrote to the applicant pursuant to s359A of the Act inviting him to comment or respond to information which the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decisions under review. The particulars of the information were as follows:

   On 12 June 2019, the review application lodged by LS Group Pty Ltd, being the nomination referred to in cl.187.233(1) for the purposes of your visas, was affirmed.

   Under Migration Law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. The legal requirements in cl.187.233 in Schedule 2 to the Regulations are attached.

7. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has ever been received by the Tribunal.

8. Where a review applicant is invited to comment on or respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s.359C(2) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s.360(3) of the Act. Of note, the effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal has considered whether it should take further action to obtain the applicant’s views on the information referred in paragraph 6 above. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicant has been aware since 30 May 2018 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 12 June 2019 were set out in that correspondence.

10. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicant’s views on the information referred to in the notification of 12 June 2019 or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under cl.187.233 of Schedule 2 of the Regulations.

11. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation

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 is whether the applicant meets the requirements of cl.187.233 of Schedule 2 of the Regulations.

    Nomination of a position

14. 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.

15. 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.

16. The applicant lodged his application for review on 19 June 2018. On 20 June 2018, the Tribunal wrote to the applicant advising him that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. Further, as set out in paragraph 6 above, the Tribunal wrote to the applicant on 12 June 2019 inviting him to comment on or respond to the information regarding the withdrawal of the nomination application. No material has been supplied to the Tribunal in response to these communications.

17. The Tribunal notes that the application for nomination for the position of Office Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

18. Therefore, cl.187.233 is not met.

19. 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.

20. In relation to the second named applicant Siwen Liu, the Tribunal notes that cl.187.311 of Schedule 2 of the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the second named applicant does not satisfy the requirements of cl.183.311. The Tribunal finds accordingly.

    DECISION

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

    Terrence Baxter
    Member

    
    

    Bridget Cullen
    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.