CHO (Migration)

[2021] AATA 1408

CHO (Migration) [2021] AATA 1408 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kyounghwan CHO
Ms Mami MIURA

CASE NUMBER:  1810653

HOME AFFAIRS REFERENCE(S):          BCC2016/3312825

MEMBER:Sheridan Lee

DATE:8 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application in relation to the first named applicant for a Regional Employer Nomination (Permanent) (Class RN) visa 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.

The Tribunal has no jurisdiction in respect of the second named review applicant.

Statement made on 8 April 2021 at 9:00 am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 6 October 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 (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 Retail Manager (General (ANZSCO 142111).

5. On 18 December 2017, the nomination lodged by the applicant’s nominator, RELAXSIS PTY LTD, was refused by the Department. Accordingly, the delegate was not satisfied that the applicant in this case met the requirements of cl 187.233(3) of Schedule 2 to the Regulations, which requires that the Minister has approved the applicant’s nomination.

6. The review application was lodged in relation to two applicants: the applicant, and his partner Ms Mami Miura. However, on 5 September 2019, the Tribunal received a completed ‘Withdrawal of application for migration or refugee review-MR Division’ form in relation to Ms Miura. The form was signed by Ms Miura on 19 July 2019. The Tribunal accepts that the review application has been withdrawn in relation to that applicant and it no longer has jurisdiction to consider her review application.

7. The Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the material before it.

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 is the subject of an approved nomination as required by cl.187.233(3).

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

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 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.

12. In this case the nomination lodged by the applicant’s sponsor, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister. The applicant was advised of this on 15February 2018. The applicant did not respond to this information. The delegate found that the applicant did not meet cl.187.233(3).  

13. On 9 March 2021 the Tribunal set aside the decision of the Department to refuse the nomination, and substituted a decision approving the nomination. As such, the applicant is now subject to an approved nomination, and the Tribunal is satisfied that cl.187.233(3) is met.

14. Given these findings, the appropriate course is to remit the visa application in relation to the first named applicant to the Minister to consider the remaining criteria for the visa.

15. As noted above, the Tribunal has accepted that there has been a valid withdrawal of the review application for Ms Muri and it no longer has jurisdiction to consider her application.

    DECISION

16. The Tribunal remits the application in relation to the first named applicant for a Regional Employer Nomination (Permanent) (Class RN) visa 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.

17. The Tribunal has no jurisdiction in respect of the second named review applicant.

    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.