Zhu (Migration)

[2023] AATA 1524

Zhu (Migration) [2023] AATA 1524 (11 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yinghui Zhu
Mr Li You
Mr Ruizhe You

REPRESENTATIVE:  Mrs Wenjing Cheng (MARN: 1383293)

CASE NUMBER:  1922658

HOME AFFAIRS REFERENCE(S):          BCC2018/358095

MEMBER:P. Maishman

DATE:11 April 2023

PLACE OF DECISION:  Perth

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

Statement made on 11 April 2023 at 10:08am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363
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 (Cth) (the Act).

2. The applicants applied for the visas on 22 January 2018. 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 (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.

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 Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because there was no approved nomination related to her application.

6. On 23 March 2023 the Tribunal wrote to the review applicants pursuant to s 359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The notice explained the Tribunal had affirmed a decision to refuse the related nomination of Soon Yee Pty Ltd. The notice explained cl 187.233 requires an approved related nomination and cl 187.311 requires the secondary applicants to be members of the family unit of a person who holds a Subclass 187 visa having met the primary criteria for the visa.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 6 April 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicants are not entitled to appear before the Tribunal. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

9. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal had before it a copy of the Department’s file.

12. The applicant gave the Tribunal a copy of the delegates decision record with her application for review.

13. The issue in the present case is whether there is an approved nomination for the position to which this visa application relates.

    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 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 the 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.

16. The applicant applied for the visa for the position of Restaurant Manager. The position is the same as in the reg 5.19 nomination application by Soon Yee Pty Ltd and the employer is the nominator.

17. The nomination was refused by the Department. Soon Yee Pty Ltd sought a review of that decision by the Tribunal which affirmed the decision on 23 March 2023.

18. The Tribunal invited the applicant to comment on the information there was no approved nomination pursuant to s 359A of the Act. The applicant did not provide comments.

19. There is no evidence before the Tribunal that the application for approval of the nomination for the position of Restaurant Manager by Soon Yee Pty Ltd has been approved.

20. The Tribunal finds there is not an approved nomination for the position to which this visa application relates.

21. Accordingly, the requirements of cl 187.233(3) are not met.    

22. Therefore, cl 187.233 is not met.

23. The second and third named visa applicants have applied for the visa as members of the family unit of a person who satisfies the primary criteria. As the Tribunal has found that the applicant does not satisfy one of the primary criteria it follows that the second and third named visa applicants do not meet the secondary criteria for the visa.

24. There is no evidence that the second and third named visa applicants would otherwise meet the primary criteria.

25. 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.

26. 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

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

    P. Maishman
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.