1600356 (Migration)

[2016] AATA 4794

1600356 (Migration) [2016] AATA 4794 (1 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kimhorn Yin

CASE NUMBER:  1600356

DIBP REFERENCE(S):  BCC2015/1896223

MEMBER:Stavros Georgiadis

DATE:1 December 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 01 December 2016 at 4:42pm

CATCHWORDS
Migration - Regional Employer Nomination (Permanent)(Class RN) visa - Subclass 187 (Regional Sponsored Migration Scheme) - Reasons for decision given orally at end of hearing on the day - Nomination approved - Applicant found to have met cl.187.233(3)

LEGISLATION

Migration Act 1958, Schedule 2 of Regulations – cl.187.233 (1) - (6) - r.5.19(4)(h)(ii) - r.5.19(4)

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 1 July 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Minister of Religion (ANZSCO 272211). 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 visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the appointment to which the visa application by the nominee relates has not been approved.

6. The applicant appeared before the Tribunal on 1 December 2016 to give evidence and present arguments in a combined hearing with related matter 1517073 in respect of the employer’s nomination of the position. The Tribunal also received oral evidence from Mr Savonn Ly, President of the Wat Khmer Santipheap Association of SA Inc. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant meets the criteria for grant of the 187 visa.

   Nomination of a position

9. 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.

10. 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.

11. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made and finds that the position to which the application relates is that of Minister of Religion (ANZSCO 272211) being the same as that nominated by the employer sponsor.  Thus the applicant meets cl.187.233(1).

12. The Tribunal is satisfied, on the documentary evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Wat Khmer Santipheap Association of SA Inc. Thus the applicant meets cl.187.233(2).

13. On 1 December 2016 the Tribunal set aside the decision under review for reasons given orally at the end of the hearing on that day and substituted a decision approving the nomination under r.5.19 in the related AAT matter number 1517073.  Thus the applicant meets cl.187.233(3).

14. At the hearing of this matter the applicant’s oral evidence, which the Tribunal accepts, is that the nomination has not subsequently been withdrawn and remains available to the applicant. This was confirmed by the applicant and the sponsor employer at the hearing. Thus the applicant meets cl.187.233(4) and cl.187.233(5) respectively.

15. The application for the visa was made on 1 July 2015 which is before the nomination was approved on 1 December 2016.  As the visa application was made on a date which is no more than 6 months after the approval, the applicant meets cl.187.233(6).

16. The Tribunal accepts that 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).

17. Therefore, cl.187.233 is met.

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations; and

    Stavros Georgiadis
    Member