Zhao (Migration)

[2018] AATA 3414

Zhao (Migration) [2018] AATA 3414 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zixiao Zhao
Ms Yuan Tian

CASE NUMBER:  1802204

DIBP REFERENCE(S):  BCC2016/2793929

MEMBER:Stavros Georgiadis

DATE:30 July 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 30 July 2018 at 2:34pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 23 August 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Corporate Services Manager (ANZSCO 132111). 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 visas for all applicants because the first named applicant did not meet cl.187.233 of Schedule 2 to the Regulations as there was no approved nomination of the occupation to satisfy cl.187.233(3).

6. The applicant appeared before the Tribunal on 30 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hang Tao Liu who said he is owner and Sole Director of the nominating business, 136 The Parade Pty Ltd ATF 136 The Parade Trust. The related matters 1732187 and 1802204 were heard together in a combined hearing held on 30 July 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.  The agent was not present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants meet the criteria for grant of the (Class RN) Subclass 187 visas. 

   Nomination of a position

10. 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. Also, 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).

11. In addition, this criterion 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.

12. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor (cl.187.233(1)).

13. The Tribunal is satisfied, from the documentary and oral evidence before it, that the person who will employ the applicant is the nominator identified in the application for approval, 136 The Parade Pty Ltd ATF 136 The Parade Trust (cl.187.233(2)).

14. At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination, the applicants would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visas and that their application would, on that basis, be unsuccessful. The Tribunal invited the applicant to comment on, or respond to, the adverse information that a decision had been made by the Tribunal earlier on 30 July 2018 to refuse the nomination and that this would be the reason, or part of the reason, for affirming the decision that is under review.

15. That decision was given orally at the hearing on the basis that the corporate trustee company, 136 The Parade Pty Ltd ATF 136 The Parade Trust, was not a registered company as at the date of hearing as no record on the ASIC government database could be found to match its ACN 601794316 which had lapsed. The Tribunal considered that the nominator (corporate trustee company) 136 The Parade Pty Ltd therefore, did not satisfy r.5.19(4)(b) for approval of the nomination. The Tribunal advised that the applicants could seek additional time to comment on, or respond to, the information regarding no approved nomination and that the Tribunal would consider adjourning the review if it considered the applicants reasonably needed additional time to comment on, or respond to, the adverse information. 

16. The applicant requested additional time to comment or respond. The Tribunal considered the request but declined to allow additional time as the issue of no approved nomination was clearly raised in the delegate’s decision for refusal of the visa applications and the applicants had included a copy of the refusal decision to their application for review.  The Tribunal also noted and accepts that the secondary applicant, Ms Yuan Tian (the applicant’s de facto partner) was invited to the hearing but did not attend the hearing. The applicant conveyed to the Tribunal that he understands and accepts that in circumstances where there is no approved nomination, it would not be open for his visa applications to be successful as approval of the nomination is one of the essential requirements for the grant of the visas.  When asked about any nomination approved for the legal entity that made the nomination application, the applicant responded that there is no approved nomination in respect of that entity that made the nomination application.  The Tribunal finds there is no approved nomination in respect of the applicant made by the nominator, 136 The Parade Pty Ltd ATF 136 The Parade Trust.

17. Having considered the available evidence before it, the Tribunal is satisfied that the nominated position is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.

18. Therefore, cl.187.233 is not met.

    DECISION

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

    Stavros Georgiadis
    Member