Chang (Migration)

[2021] AATA 2075

Chang (Migration) [2021] AATA 2075 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Li-Chun Chang
Mr Minki Kim

CASE NUMBER:  1829552

HOME AFFAIRS REFERENCE(S):          BCC2017/154092

MEMBER:Alan McMurran

DATE:4 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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; and

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

·cl.187.311 of Schedule 2 to the Regulations

Statement made on 04 June 2021 at 4:20pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – subject of approved position nomination – refusal of related nomination application set aside on review – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 12 January 2017. 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 Office Manager (ANZSCO 512111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination, and therefore cl.187.233 was not met.

6. The delegate found that on 30 July 2018, the nomination lodged by the nominator, Pacific Century Corporation Pty Ltd (“the nominator”), being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Home Affairs.

7. The applicants appeared before the Tribunal by telephone on 3 June 2021 in a combined hearing with the Tribunal’s review of the nomination decision to give evidence and present arguments. The Tribunal also received oral evidence from the Manager of the nominator, Mr. Paul Wortley. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

8. The applicants were represented throughout  by their registered migration agent, who did not appear for the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary review applicant is the subject of an approved nomination.

    Nomination of a position

11. 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.

12. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. 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.

14. The Tribunal finds on the current information that:

    a.On 4 June 2021, the Tribunal set aside the delegate’s decision for the Minister refusing the nomination application for the position nominated

    b.The nomination for the position is now approved

    c.The nominator is the entity which will employ the applicant

    d.The nominator has not withdrawn its application

    e.The Tribunal is not aware of any ‘adverse information’ known to Immigration about the nominator or a person ‘associated with’ the nominator (within the meaning of reg 1.13A and reg 1.13B) and which it is not reasonable to disregard;

    f.The position of Office Manager is still available to the applicant and her application was made no more than six months after the nomination of the position was approved.

15. Therefore, cl 187.233 is met.

    Secondary applicant

16. The Tribunal finds that the second named applicant on the evidence and documents  produced married the primary applicant in 2015 and is a family member with the applicant living in Emerald, Queensland.

17. The second named applicant made a combined application with the primary review applicant. The primary review applicant is eligible for the grant of a Subclass 187 visa, subject to any further requirements of the Department for issue of the visa. The second named applicant therefore now meets cl.187.311.

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 applications 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; and

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

    ·cl 187.311 of Schedule 2 to the Regulations.

    Alan McMurran
    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.