Chou (Migration)

[2023] AATA 3801

Chou (Migration) [2023] AATA 3801 (9 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yiting Chou
Mr Yung Hsuan Chen

REPRESENTATIVE:  Mr Faisal Bakhtiar

CASE NUMBER:  1927641

HOME AFFAIRS REFERENCE(S):          BCC2018/375183

MEMBER:Alison Mercer

DATE:9 November 2023

PLACE OF DECISION:  Melbourne

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 9 November 2023 at 2:36pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Nurseryperson – tribunal set aside nomination application – approved nomination – position is still available to the applicant –subject of an approved nomination – member of the family unit of the applicant – decision under review remitted   

LEGISLATION
Migration Act 1958, ss 65, 359

Migration Regulations 1994, r 1.13, 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 23 January 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Nursery person.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, Prima Fresh Packers Pty Ltd, had been refused by the Department on 13 August 2019. The delegate found that the applicant therefore did not meet the criteria for a subclass 187 visa in the Direct Entry stream, and had not claimed to meet the criteria for any other stream. The delegate also refused to grant the second named applicant (the applicant’s partner) a subclass 187 visa as he did not meet the secondary visa criteria requiring him to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that he met the primary visa criteria in his own right.

6. The Tribunal received a review application from the applicants on 1 October 2019. It was accompanied by a copy of the delegate’s decision.

7. Subsequently, the applicants appointed a registered migration agent, Mr Faisal Bakhtiar, as their representative and authorised recipient for correspondence.

8. The applicants appeared before the Tribunal on 27 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   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 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 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.

12. The Tribunal finds that the applicant’s employer, Prima Fresh Packers Pty Ltd, lodged a review application with the Tribunal on 24 August 2019 in relation to the refusal of its nomination of the applicant, and that on 9 November 2023, the Tribunal set aside the Department’s refusal decision and substituted a decision to approve the nomination made by Prima Fresh Packers Pty Ltd [see AAT/MRD decision 1923675 of 9 November 2023].

13. Accordingly, the Tribunal is satisfied on the available evidence (which includes evidence given in relation to the nomination review case lodged by Prima Fresh Packers Pty Ltd) that:

    ·Prima Fresh Packers Pty Ltd made the original nomination application in respect of the applicant, and that employer continues to employ the applicant;

    ·the nomination has now been approved and has not been 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 if so, it is reasonable to disregard it;

    ·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. Therefore, the Tribunal finds that cl.187.233(2) to (6) are met, and cl.187.233 as a whole is met.

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

16. As the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, his application will also be remitted to the Department for reconsideration upon its reconsideration of the applicant’s application.

    DECISION

17. 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.

    Alison Mercer
    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.