Chang (Migration)

[2023] AATA 2297

Chang (Migration) [2023] AATA 2297 (10 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jeehun Chang
Ms Sugyeong Kim

REPRESENTATIVE:  Miss Saemi Seon (MARN: 1679394)

CASE NUMBER:  1935545

HOME AFFAIRS REFERENCE(S):          BCC2018/1279784

MEMBER:George Hallwood

DATE:10 July 2023

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations.

Statement made on 10 July 2023 at 2:24pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – café manager – subject of approved position nomination – related nomination application refused – combined hearing of position and visa reviews – evidence from applicant and nominator – nomination refusal set aside – member of family unit – 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 (Cth) (the Act).

2. The applicants applied for the visas on 17 March 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 Café 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 the related nomination application by Four Birds Darwin Pty Ltd case number 1932529 had been refused.

6. The applicants appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. As this was a combined hearing with the related nominator, the Tribunal also received oral evidence from Mr Philip Elsegood on behalf of the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the criteria contained in cl 187.233.

   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 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 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.

12. Based on the reasons given below the Tribunal finds:

    ·On 10 July 2023 the Tribunal approved the nomination for 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, and this has not subsequently been withdrawn;

    ·The position of Café Manager to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia;

    ·The position of Café Manager is the one that was the subject of the declaration made as part of the current visa application on 17 March 2018;

    ·The associated nomination by Four Birds Darwin Pty Ltd identifies the applicant in relation to the position and Four Birds Darwin will employ the applicant;

    ·As detailed in the related nomination decision 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);

    ·Mr Elsegood told the Tribunal and the Tribunal is satisfied that the position is still available to the applicant; and

    ·The visa application was made on 17 March 2023 and the nomination of the position was approved on 10 July 2023 so the visa application was made no more than six months after the nomination of the position was approved.

13. Therefore, cl 187.233 is met.

    CONCLUDING PARAGRAPHS

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

15. As the secondary applicant, as a member of the family unit, was refused a visa because the primary applicant did not receive a visa, the Tribunal recommends reconsideration of the secondary applicant’s application together with that of the primary applicant.

    DECISION

16. 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 of Schedule 2 to the Regulations.

    George Hallwood
    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.