Zhang (Migration) [2023] AATA 3657 (18 October 2023)

Last Updated: 10 November 2023

Zhang (Migration) [2023] AATA 3657 (18 October 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Ms Bei Zhang
Miss Keke Wang

REPRESENTATIVE: Mr Greg Hughan

CASE NUMBER: 2216635

HOME AFFAIRS REFERENCE(S): BCC2019/5735386

MEMBER: Sheridan Aster

DATE: 18 October 2023

PLACE OF DECISION: Melbourne

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

Statement made on 18 October 2023 at 9:33am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Practice Manager – no approved nomination – request for Ministerial Intervention – participation in compensation proceedings in Australia – family separation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 186.311, 187.233; r 1.13

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 13 November 2019. 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 position of Practice Manager, nominated by Tao Jiang Lawyers. The second named applicant is the daughter of the primary applicant.
5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, which requires that the position to which the application relates is nominated in an application that has been approved by the Minister.
6. On 13 November 2022, the applicant applied to the Tribunal for merits review of that decision. A copy of the delegate’s decision and reasons was provided to the Tribunal with the application for review.
7. The applicant appeared before the Tribunal by telephone on 11 October 2023 to give evidence and present arguments. The applicants were represented in relation to the review.
8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Nomination of a position

9. 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.
10. 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.
11. On 10 October 2023, the Tribunal received a written submission from counsel for the applicants. The submission conceded that the nomination application made by Tao Jiang was refused by a delegate of the Minister on 2 August 2022. It was requested that the Tribunal refer the matter to the Department for consideration of the Minister to exercise their discretion under s 351 of the Act.
12. In the circumstances, the Tribunal must find that the position to which the application relates is not nominated in an application that has been approved by the Minister. Therefore, cl 187.233(3) is not met. The Tribunal does not have the power to waive the requirement to meet the criteria set out in Part 186 of Schedule 2 to the Regulations for the grant of the visa.
13. 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.
14. The second named applicant applied for the visa on the basis that she is the member of the family unit of another person who holds a Subclass 187 visa. As the primary applicant was found not to meet the prescribed criteria, the secondary applicant does not satisfy cl 186.311 of Schedule 2 to the Regulations.

Referral for the consideration of the Minister

15. Section 351 of the Act provides the Minister with the power to substitute a decision of the Tribunal for a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. The Minister must consider if it is in the public interest to substitute the relevant decision.
16. The submissions of 10 October 2023 contend that it would be in the public interest to grant Subclass 186 visas to the applicants. A comprehensive overview of the relevant factors was provided. The Tribunal recommends that the submissions be provided to the Minister in support of the request, however, highlights the following points:
    • The applicant suffered an injury from workplace bullying whilst employed in Australia. She made a successful WorkCover claim and obtained an undertaking of no-bullying from the company director through the Fair Work Commission. She participates in ongoing and regular treatment for mental health issues stemming from the workplace bullying.
    • The applicant was granted a serious injury certificate by the Victorian County Court in September 2022, which allowed her to make a claim against her former employer for economic compensation. Her final hearing for the personal injury claim is scheduled for May 2024. Providing the applicant with a legal avenue to remain in Australia would allow her to finalise these proceedings in Australia.
    • The second named applicant was aged 13 at the date of the Tribunal hearing. She has completed her education in Australia since kindergarten. She can speak Chinese but cannot read or write in Chinese. Returning to China would result in a setback to her education.
    • The second named applicant’s father has re-married and continues to live in Australia. They maintain a close relationship and he visits her every Saturday in accordance with court orders of the Family Court of Australia. It is the applicant’s understanding that he has been granted permanent residency, however she did not have evidence confirming his visa status and at the hearing she was unsure why her daughter was not granted permanent residency as a member of his family unit. Nevertheless, if the applicants were required to depart Australia, the second named applicant would be separated from her father for such time as he remains in Australia.
    • The applicant has completed significant study in Australia and was admitted as a legal practitioner in September 2022. She has a PhD in Engineering from China and has the capacity to make a significant contribution to the Australian economy.

DECISION

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

Sheridan Aster
Member

ATTACHMENT A

187.233 (1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Direct Entry stream; and

(iii) seeks to meet the requirements of subregulation 5.19(12); 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.