Chhoden (Migration)

[2023] AATA 1493

Chhoden (Migration) [2023] AATA 1493 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kinzang Chhoden
Mr Gyeltshen Kinley
Mr Chimmi Tenzin Kinley
Mr Rigsel Tenzin Kinley

REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)

CASE NUMBER:  1930707

HOME AFFAIRS REFERENCE(S):          BCC2019/2512506

MEMBER:Karen McNamara

DATE:24 May 2023

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(3) of Schedule 2 to the Regulations.

Statement made on 24 May 2023 at 1:35pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – occupation of Retail Manager (General) – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19

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 13 May 2019. 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 Mrs Kinzang Chhoden (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position/occupation of Retail Manager (General) (ANZSCO 142111).

5. The applicants applied to the Tribunal on 29 October 2019, for review of the delegate’s decision.

6. On 9 October 2019, the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, because on 2 September 2019, the nomination application lodged by Yame Australia Pty Ltd was refused by a delegate of the Minister for Home Affairs.

7. On 9 May 2023, Mrs Kinzang Chhoden appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tiecai Feng (the nominator) in the related matter for the nomination review application (AAT Case file 1926653). The related matters were heard concurrently in a combined hearing.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

9. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

12. 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.

13. 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.

14. The nominating employer, Yame Australia Pty Ltd applied to the Department for approval of a nomination in relation to the nominated position/occupation of Retail Manager (General) (ANZSCO 142111). That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

15. Yame Australia Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1926653). On 24 May 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

16. The second named applicant (Mr Gyeltshen Kinley), third named applicant (Mr Chimmi Tenzin Kinley) and fourth named applicant (Mr Rigsel Tenzin Kinley), applied on the basis of being a member of the family unit of the first named applicant (Mrs Kinzang Chhoden). The applications by Mr Gyeltshen Kinley, Mr Chimmi Tenzin Kinley and Mr Rigsel Tenzin Kinley will be determined by reference to the outcome of Mrs Kinzang Chhoden’s application on remittal to the Department for consideration.

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

    DECISION

18. 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(3) of Schedule 2 to the Regulations.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.