Cho (Migration)

[2021] AATA 3428

Cho (Migration) [2021] AATA 3428 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yongjin Cho

CASE NUMBER:  1827952

HOME AFFAIRS REFERENCE(S):          BCC2017/390712

MEMBER:Sheridan Lee

DATE:3 September 2021

PLACE OF DECISION:  Melbourne

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 requirements of cl. 187.233 of Schedule 2 to the Migration Regulations 1994

Statement made on 3 September 2021 at 8:45 am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Marketing Specialist – nomination approved upon review – decision under review remitted          

LEGISLATION

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

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 30 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the application was not the subject of an approved nomination.

6. The applicant appeared before the Tribunal via video on 28 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Seongjin Kim, Director of Nuzzon Pty Ltd, the nominating employer.

7. The applicant was represented in relation to the review by his 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

   Nomination of a position

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

10. 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.

11. The position to which the application relates is the position of Marketing Specialist, nominated by Nuzzon Pty Ltd. The position is located in Geelong, which has been specified as regional Australia for the purposes of the provision. The position is the subject of the declaration made as part of the current visa application.

12. The nomination application lodged by Nuzzon was refused by the Department on 26 July 2018. The company applied to the Tribunal for merits review of that decision and on 2 September 2021 the Tribunal set aside the delegate’s decision and substituted it with a decision approving the nomination.

13. Having reviewed the current visa application and the nomination application submitted by Nuzzon, the Tribunal is satisfied that:

    ·Nuzzon made the nomination and will employ the nominee

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no adverse information known to immigration

    ·the position is still available to the applicant, and

    ·the visa application was made on the same day as the nomination application and therefore no more than six months after the nomination of the position was approved.

14. Therefore, cl.187.233 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the requirements of cl 187.233 of Schedule 2 to the Migration Regulations 1994.

    Sheridan Lee
    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.