Zhu (Migration)

[2019] AATA 2055

Zhu (Migration) [2019] AATA 2055 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xiang Zhu
Mr Qian Bei ZHU
Ms Qianqian YU

CASE NUMBER:  1620651

HOME AFFAIRS REFERENCE(S):           BCC2015/3909278

MEMBER:Stavros Georgiadis

DATE:24 April 2019

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 24 April 2019 at 2:52pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream –Acupuncturist –no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 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 Immigration and Border Protection 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 16 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Acupuncturist (ANZSCO 252211) with the nominator employer, the Trustee for the Ping Ming Health Trust.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations as the Minister had not approved the nomination for the position at the time of the delegate’s decision: cl.187.223(2).

6. The applicant appeared before the Tribunal by video conference from Perth, Western Australia on 24 April 2019 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 applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The primary issue in the present case is whether the applicant satisfies the requirements of cl.187.233 for the grant of the 187 visas in respect of all applicants.

   Nomination of a position

10. 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.

11. 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.

12. The Tribunal has examined the visa applications on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor, being that of Acupuncturist (ANZSCO 252211) (cl.187.233(1)).

13. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, here the Trustee for the Ping Ming Health Trust. Thus the applicant meets cl.187.233(2).

14. On 17 April 2019 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related case-file number 1618516 for the reasons set out in the Decision Record of that date refusing the nomination.

15. In accordance with the procedure under s.359AA of the Act the Tribunal put to the applicant at the hearing that it wished to discuss with him information that, subject to his comments, would be a reason or part of the reason, for affirming the decision to refuse the applicants the 187 visas. The Tribunal explained that he would be asked to respond to this adverse information and would be entitled to seek additional time to comment on, or to respond to, the information the Tribunal was about to put to him. The Tribunal explained that affirming the decision under review is a consequence of relying on that information, outlined below, in making its decision.

16. The Tribunal put to the applicant that on 17 April 2019 the Tribunal affirmed the decision refusing approval of the nomination of the position to which the application relates made by the nominating employer, the Trustee for the Ping Ming Health Trust, for the nominated position of Acupuncturist (ANZSCO 252211). The Tribunal also told the applicant that this information is relevant to this review because without evidence of the approval of the relevant nomination for the position, the applicant could not satisfy the provisions of clause 187.233(3) of the Migration Regulations and, in the case of the other applicants, the relevant secondary criteria for the grant of the Class RN visas sought.

17. The Tribunal put to the applicant that without an approved appointment, he and the secondary visa applicants would not be able to meet essential criteria to satisfy cl.187.233 for the grant of the visas and that all applications would, on that basis, be unsuccessful.

18. The applicant responded immediately and did not seek additional time to provide further comments in relation to the information put to him. The applicant told the Tribunal that his employer had explained to him the reasons for the nomination refusal - being on the basis that metropolitan Perth, where the business is located, no longer meets the definition of regional Australia for the purpose of the nomination application.  The applicant said he considers it unfair as his application was made in 2016 and things had changed since that time in respect of the meaning of ‘regional Australia’. The applicant confirmed to the Tribunal that he understands and accepts that in such circumstances, it would not be open for the visa applications to be successful as an approved nomination for the position is one of the essential criteria (cl.187.233(3)).

19. Having considered the available evidence before it, the Tribunal is satisfied that the position of Acupuncturist (ANZSCO 252211) 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) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.

20. Therefore, cl.187.233  is not met.

21. 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 in respect of all applicants, including the remaining visa applicants, Ms Qianqian YU and Mr Qian Bei ZHU (spouse and son respectively) of the primary applicant, as members of the same family unit.

    DECISION

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

    Stavros Georgiadis
    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.