Chen (Migration)

[2021] AATA 4704

Chen (Migration) [2021] AATA 4704 (29 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ziqiang Chen

CASE NUMBER:  1924735

HOME AFFAIRS REFERENCE(S):          BCC2018/836336

MEMBER:Alan McMurran

DATE:29 October 2021

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations; and

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 29 October 2021 at 6:57pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Hotel Services Manager – tribunal set aside nomination application – approved nomination –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 February 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Hotel Services Manager (ANZSCO 431411).  

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) and cl.187.233 of Schedule 2 to the Regulations because the Minister had not approved the nomination by CCIG Investments Pty Limited (the nominator). The nomination application was refused by the Department on 25 July 2019.

6. The applicant appeared before the Tribunal on 29 October 2021 in a combined hearing with a review of the nomination refusal[1], to give evidence and present arguments. The Tribunal also received oral evidence from the Financial Controller of the nominator, and from a shareholder representing related corporations financing the nominator.

   [1] See related Tribunal case  1922695

7. The applicant was represented in relation to the review by his registered migration agent, who also made submissions.

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 requirements of regulation 187.233(3) and 187.233 of Schedule 2 to the Regulations.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision.

11. 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.

12. 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 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.

13. On 29 October 2021, the Tribunal made a decision setting aside the nomination decision under review and substituting a decision approving the nomination.[2] The Tribunal found that the position to which the application relates is the subject of an application in the Direct Entry stream, and located on Daydream Island, near Mackay in Far Northern Queensland, a regional location in Australia.

    [2] T case 1922695

14. The position is the same position which is the subject of the declaration made as part of the current visa application. As the nomination was made on or after 1 July 2017, it has also identified the applicant in relation to the nominated position.

15. The Tribunal finds that the nomination has been approved and has not been subsequently withdrawn and that the person who will employ the applicant is the nominator.

16. The Tribunal is further satisfied on the available information 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 reg 1.13A and reg 1.13B), and that the visa application was made no more than six months after the nomination of the position was approved.    

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(3) of Schedule 2 to the Regulations; and

    ·cl 187.233 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

    (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.