Cho (Migration)

[2019] AATA 1942

Cho (Migration) [2019] AATA 1942 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hyunchang Cho
Ms Ching-Pei Yen
Master Shih-Hsuan Chao

CASE NUMBER:  1620016

HOME AFFAIRS REFERENCE(S):           BCC2016/289360

MEMBER:Karen McNamara

DATE:19 February 2019

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 of Schedule 2 to the Regulations.

Statement made on 19 February 2019 at 12:57pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent)(Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination was refused – Tribunal set aside department decision – no evidence to suggest adverse information – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233, rr 1.13A, 1.13B, 5.19(4)

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 Immigration and Border Protection on 11 November 2016 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 20 January 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 first named applicant, Mr Hyunchang Cho (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Welder (First Class) ANZSCO - 322313.

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 nomination of a position in relation to the applicant had not been approved.

6. The applicant appeared before the Tribunal by video conference on 12 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from         Mr Geoff Hodges on behalf of the nominator.

7. The applicants were represented in relation to the review by their registered migration agent.

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 first named applicant (Mr Hyunchang Cho) meets the requirements of 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 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.

11. 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 r.1.13A and r.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. The nominating employer, Swan Fabricators (WA) Pty Ltd, applied to the Department of Immigration for approval of a nomination in relation to the position of Welder (First Class) ANZSCO - 322313. That nomination was refused by the Department and consequently the applicant’s visa application was refused.

13. Swan Fabricators (WA) Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT case No. 1617553). On 19 February 2019, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

14. Based on the evidence before it, the Tribunal is satisfied that:

    ·The person who will employ the applicant in the nominated position (that is Swan Fabricators (WA) Pty Ltd), is the person who made the nomination.

    ·Swan Fabricators (WA) Pty Ltd’s nomination for the position of Welder (First Class) has been approved by the Tribunal and has not been subsequently withdrawn.

    ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

    ·The  nominator advised at hearing the position is still available to Mr. Cho; and

    ·The visa application was made at the same time as the employer nomination and was therefore not made more than six months after the nomination was approved.

15. On the basis of the above, the Tribunal finds that the requirements of cl.187.233 are met.

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

17. Ms Ching-Pei Yen and Master Shih-Hsuan Chao, applied on the basis of being a member of the family unit of the first named applicant. The applications by Ms Ching-Pei Yen and Master Shih-Hsuan Chao will be determined by reference to the outcome of Mr Hyunchang Cho’s application on remittal to the Department for consideration.

    DECISION

18. 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

    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 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.