Chan (Migration)

[2020] AATA 5302

Chan (Migration) [2020] AATA 5302 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ching Hei Chan
Ms Tsz Ching Ng
Master Ayden Chan

CASE NUMBER:  1815760

HOME AFFAIRS REFERENCE(S):          BCC2016/2299065

MEMBER:Mr S Norman

DATE:14 December 2020

PLACE OF DECISION:  Sydney

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

·cl.187.233(3) of Schedule 2 to the Regulations

Statement made on 14 December 2020 at 10:48am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – refusal of related position nomination set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs 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 8 June 2016. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411). The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

5. The (first named) applicant appeared before the Tribunal on 1 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the representative of the associated nominator (Mr Michael CHAM). The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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.

8. On 24 April 2018 the nomination lodged by MTC FOODS PTY LTD in favour of the applicant was refused. On the same day, the applicant was informed of the decision (by email) and given 28 days to respond. The applicant had not responded to the Department’s email. As the nomination linked to this visa application had been refused, criterion 187.233(3) was not met and consequently, the delegate found the applicant did not satisfy cl.187.233.

9. After then considering other visa streams (Temporary Residence Transition stream, Agreement stream), and cl.187.311 (membership of the family unit), the delegate refused to grant the applicant the Regional Sponsored Migration Scheme (subclass 187) visa.

10. On 14 December 2020, the Tribunal approved the nomination lodged by the applicant’s associated nominator (MTC FOODS PTY LTD – AAT # 1813229). Therefore, the Tribunal finds the applicant has satisfied cl.187.233(3).

11. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·cl.187.233(3) of Schedule 2 to the Regulations

    Mr S Norman
    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.