Zhong (Migration)

Zhong (Migration) [2021] AATA 1417 (7 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Yi ZHONG
Mr Kam Lau
CASE NUMBER:  1816724
HOME AFFAIRS REFERENCE(S):          BCC2016/419594
MEMBER:De-Anne Kelly
DATE:7 April 2021
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 07 April 2021 at 2:42pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Dental Practice Manager – subject of an approved nomination – postponement request of hearing declined – employer nomination refused – procedural fairness – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 65, 353, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 (Cth) (the Act).
The applicants applied for the visas on 28 January 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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 Dental Practice Manager.
The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination lodged by Advanced Denture Clinic Gympie Pty Ltd was refused on the 17 April 2018 being the application referred to in cl.187.233(1)
The applicants appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. Mr Kam LAU also attended the hearing. An interpreter in the Mandarin to English language assisted during the hearing.
The applicants were represented in relation to the review by their lawyer Mr Tsai SHENG-YU
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies cl.187.233(3) as follows;
(3) The Minister has approved the nomination.
Interpretation
The Tribunal asked the applicant if they could understand the interpretation and were advised that they could except for some legal terms. The Tribunal invited them to immediately alert it, if the applicant was having any difficulty with the interpretation.
Postponement, adjournment and extension of time.
A Postponement request of the hearing for three months to allow the applicant to prepare evidence was received in response to the hearing invitation. The Tribunal declined to do so and responded as follows;
On 22 February 2021 we sent a letter inviting you to attend a hearing at the Tribunal,
by telephone, on 16 March 2021 to give evidence and present arguments relating to
the issues in your case. On 25 February 2021 the Tribunal received a request that the hearing be postponed. The Presiding Member has considered the request carefully but has decided not to postpone the hearing.
The Member notes that you applied for review of the decisions on 7 June 2018 and
have had over two years to prepare. The Member declines to adjourn the hearing
based on you requiring further time to prepare a response. The Tribunal is required
under s.353 of the Migration Act 1958 and s.2A of the Administrative Appeals Tribunal Act 1975 to ensure that the review is fair, just, informal, economical and quick. As such, the Member has decided not to exercise their discretion in adjourning the review. The Presiding Member further notes that the employer nomination was finalised in December 2020.
The applicant requested an in person hearing but the Tribunal declined this request due to safety concerns around the COVID-19 pandemic. The hearing was conducted by telephone.
During the hearing the applicant requested a brief adjournment of 10 minutes which was granted.
Following the hearing the applicant requested that both the file for the employer nomination review and the visa application review be re-opened and a joint hearing held for both. The Tribunal declined this request, and this is dealt with in [29] to [30].
The applicant was given 14 days following the hearing to provide further evidence and information. On the 29 March 2021 the applicant requested an extension of time of seven days which the Tribunal readily granted to 6 April 2021.
The response received asked again for a re-instatement of the hearings for both the employer nomination refusal review and the visa application refusal review. The Tribunal has declined this request, and this is dealt with in [33] to [38] below.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
if the Tribunal does so—the Tribunal must:
ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Nomination of a position
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.
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 reg 1.13A and reg 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.
After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision.
The Tribunal advised the applicant of the following information under s359AA of the Migration Act 1958 and invited the applicant to respond to the information.
The Tribunal on the 02 December 2020 affirmed the decision under review to refuse the employer nomination on the basis that the nominator had failed to satisfy r.5.19(4) of the Regulations. Tribunal records indicate that on 11 September 2020 Mr Sudesh Moodaley the Director of Advanced Denture Clinic Gympie Pty Ltd spoke with a Tribunal officer via telephone and advised he was unaware of lodging a review application although he could recall something related to a visa and someone had asked for a visa but he did not know the person and it had been two years ago and he didn’t know where the person was now.
Tribunal records of the conversation show that Mr Moodaley sought explanation from the Tribunal as to details of the sponsorship and denied having any information about this visa nomination and appeal. Mr Moodaley confirmed his contact details as being correct and advised that he would contact his agent. The Tribunal advised him that if he wished to update his contact details to complete a Change of Contact details form and send it to [email protected]. Mr Moodaley acknowledged this information. The Tribunal officer confirmed Mr Moodaley’s phone number and business address.
The Tribunal invited the employer to provide updated information material to a decision, but the employer did not provide the information in the prescribed time period and no further communication was received from the employer. The invitation and the advice regarding the lapsed agent were sent by express post to the business address confirmed by Mr Moodaley in the telephone conversation with the Tribunal officer.
In the hearing the applicant requested a ten-minute adjournment which was granted and then stated she would respond in the hearing and make a written response in 14 days.
The applicant explained that the Department had refused the employer nomination because of a misunderstanding. The sole owner and director of the denture lab and clinic is Mr Moodaley. When, he was contacted by the Tribunal regarding the employer nomination review he misunderstood as he had applied for a visa for his Mother and thought this referred to her application. They tried to contact Mr Karl Young, the agent but he is in Taiwan. Mr Moodaley, the employer said that on multiple occasions they contacted him, but he did not know who he was speaking to and which application was being referred to. It is noted that despite the agent apparently failing to forward correspondence from the Tribunal to the employer that it was also sent by express post to the employer at the business address confirmed by the employer in a telephone call and addressed personally to the director, Mr Moodaley.
The Tribunal advised the applicant that the visa application review had no prospects of success as there is no employer nomination. The Tribunal has no discretion in this matter it must affirm or refuse the visa application if there is no approved employer nomination.
The applicant stated that the employer and she did not know what was happening due to the lack of professionalism of the agent and they want some justice and procedural justice.
The Tribunal observed that both for the visa application; employer nomination and the separate reviews the respective applicants had agreed in writing that all communication should go through the appointed agent. The Tribunal found that procedural fairness had been provided to the applicants. It was unfortunate that they were unaware that Mr Young’s registration had been cancelled although this had been sent to both the employer and the visa applicant by express post respectively to their confirmed business address and residential address on the review application.
On the 22 March 2021 the applicant wrote to the Tribunal requesting that both the hearings for the employer nomination and the visa application be re-instated because it was procedurally unfair since the employer’s failure to appear in December 2020 was due to the failure of a third party, namely the previous migration agent. The applicant also stated that the employer nomination review had been dismissed however it had in fact been affirmed.
On the 23 March 2021, the Tribunal responded as follows to the request.
I am writing on instruction from the Presiding Member in relation to your requests made on 22 March 2021. In relation to the hearing audio request, I attach the hearing audio and correspondence in relation to it to this email.
The Tribunal has carefully considered your request to have the application for review lodged by the nominator, Advanced Denture Clinic Gympie Pty Ltd, re-opened, and to have a hearing for both that matter, and a further hearing for the applicant in this application for review held.
The request to re-open the application for review lodged by Advance Denture Clinic Gympie Pty Ltd is denied. This is on the basis that the Tribunal made its decision in respect of the nomination based on all the evidence before it at the time it made its decision. The Tribunal at this point is ‘functus officio’, in that it has completed its statutory obligation to carry out merits review. The Tribunal notes that this is a case where the previous migration agent was negligent and is a scenario with claims made by applicants that is not uncommon and does not alone justify the re-opening of the nomination decision.
The Tribunal further notes that whilst the agent appears not to have forwarded correspondence to Advanced Denture Clinic Gympie Pty Ltd, the Tribunal sent notice regarding the lapsed registration of their former migration agent (by post) and a form to appoint a new representative by Express Post to the business address of Advanced Denture Clinic Gympie Pty Ltd on 11 September 2020.
An officer of the Tribunal further contacted the director of the business on the same date, to which the director said he was unaware of any appeal lodged to the Tribunal but confirmed the phone number and address of the business that was recorded by the Tribunal. The Tribunal did not receive a response to the letter sent on 11 September 2020.
The Tribunal further sent an invitation, pursuant to s.359(2) of the Migration Act, to provide up to date information regarding claims the business met the requirements of the nomination application lodged by Advanced Denture Clinic Gympie Pty Ltd on 9 November 2020. A copy of this invitation was sent by express post on 10 November 2020, to the address of the business, and was personally addressed to the director. The Tribunal did not receive a response to this letter, and as such, the Tribunal was able to proceed to a decision on this matter, which it did on 2 December 2020.
It was advised in the hearing for Ms Yi Zhong on 16 March 2021, that the employer nomination lodged by Advanced Denture Clinic Gympie Pty Ltd was not dismissed as claimed, but a decision was made to affirm the refusal of the employer nomination application. The notification that the nomination matter had been finalised in December 2020 was communicated to you on 9 March 2021, when refusing the postponement request in relation to the hearing, and again on 10 March 2021, when refusing a request to have the matter heard in person.
The Tribunal finally notes that express post letters were sent to the visa applicant in relation to their former migration agent having their registration lapsed were sent, and further the invitation to attend the hearing were received, and the visa applicant attended the hearing.
The Tribunal therefore considers that as these letters were sent and received by the visa applicant, that the applicant attended the hearing and was able to provide her evidence to the Tribunal, that the Tribunal has afforded the applicant with procedural fairness.
It is for these reasons that the request for a further hearing is declined. Nonetheless, the applicant has been provided with the opportunity to provide additional evidence in writing, up until 14 days following the hearing (that being 30 March 2021) or is able to make a request for an extension of time to do so.
The applicant requested an extension of time of seven days which was granted to 6 April 2021.
On 6 April 2021 the applicant wrote and presented arguments regarding the delegates decision on the employer nomination. They stated that they had again been denied procedural fairness with regard to the affirm decision on the employer nomination refusal because they did not receive the notification of the affirm decision and this denied them the right to apply for re-instatement within 28 days. The visa applicant has misunderstood the difference between an initial dismissal and an affirm decision where only the former has the right to apply for re-instatement within 14 days. There was no re-instatement right attached to the affirm decision on the employer nomination refusal. The decision notification was sent to the email address of the lapsed migration agent as the employer, despite receiving a letter by express post advising the agents registration had lapsed and being provided a form to appoint a new representative, did not change his representatives details.
The applicant claims that the Tribunal “asked the wrong question” when the Tribunal officer rang the employer Mr Moodaley The visa applicant appears to have confused this term which relates jurisdictional error in the formal decision making of a Tribunal Member with that of a phone call from a Tribunal officer trying to determine if they are speaking to the correct nominator and obtaining a business address from them.
The visa applicants claim the Tribunal ignored relevant material, but this was documents for the employer nomination which were provided at the hearing on 16 March 2021 for the visa application review and they were not material to a decision on the visa application review.
The employer wrote to the Tribunal on 25 March 2021 and requested a re-instatement and said he was unaware of the Tribunal hearing on the 2 December 2020. However, there was no hearing on the 2 December 2020 but rather a request for updated information sent on the 9 November 2020 by express post to the business address confirmed by the employer in phone call with a Tribunal officer and personally addressed to the employer. Because there was no response to this request the employer lost the right to a hearing and the presiding Member then considered it reasonable to make a decision on the evidence before them.
The visa applicants claim they are highly qualified and want to stay in Australia.
While the Tribunal acknowledges the applicants frustration over their lapsed agent and the affirm decision on their employer nomination the Tribunal has afforded the employer procedural fairness by forwarding information regarding the lapsed agent and the form to appoint a new representative as well the invitation to provide updated information by express post to the business address confirmed by the employer over the telephone. The Tribunal then considered it reasonable to make a decision on the evidence before it.

The Tribunal finds that the applicant does not have an approved employer nomination to satisfy cl.187.233(3).
Therefore, cl 187.233 is not met.
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.
Mr Kam Lau was a secondary applicant on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicant on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.
187.311
The applicant:
(a) 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; and
(b) made a combined application with the primary applicant.
The secondary applicant made a combined application with the primary applicant and applied as the spouse and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicant is a member of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicant therefore does not satisfy cl.187.311.
The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicant a subclass 187 visa.
Decision
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
De-Anne Kelly
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.

[2021] AATA 1417

7 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Jurisdiction

Natural Justice

Statutory Construction

Appeal