Cunningham (Migration)

[2023] AATA 2756

Cunningham (Migration) [2023] AATA 2756 (14 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michael John Cunningham
Mrs Yanfen Huang
Master Lian Huang
Miss Shiya Huang

CASE NUMBER:  2303200

HOME AFFAIRS REFERENCE(S):         BCC2021/84450

MEMBER:Alison Mercer

DATE:14 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 494 visa:

·cl 494.213 of Schedule 2 to the Regulations.

Statement made on 14 August 2023 at 2:06pm

CATCHWORDS

MIGRATION – Skilled Employer Sponsored Regional (Provisional) (Class PE) visa – Subclass 494 Skilled Employer Sponsored Regional (Provisional) – occupation of Secondary School Teacher – genuine position – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 140, 360
Migration Regulations 1994, Schedule 2, cl 494.213; r 2.75

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 Skilled Employer Sponsored Regional (Provisional) (Class PE) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 13 January 2022. The delegate refused to grant the visas on 28 February 2023.

2. The delegate made the decision on the basis that the first named applicant did not satisfy cl.494.213, which provides as follows:

   ...

   494.213

   (1)  Each of the following applies:

   (a)  the nomination identified in the application has been approved under section 140GB of the Act;

   (b)  the person who made the nomination was an approved work sponsor at the time the nomination was approved;

   (c)  the approval of the nomination has not ceased under regulation 2.75B. 

   (2)  Both of the following apply:

   (a) the applicant's intention to perform the nominated occupation is genuine;

   (b)  the position associated with the nominated occupation is genuine.

3. The delegate found that the applicant was not the subject of an approved nomination by his nominating employer, Mackillop Catholic College and therefore did not meet cl.494.213. Accordingly, he could not be granted a subclass 494 visa. The delegate also refused to grant subclass 494 visas to the second, third and fourth named applicants (the applicant’s wife and children) on the basis that they did not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 494 visa, and there was no evidence that any of them met the primary visa criteria in their own right.

4. The Tribunal received a review application from the applicants on 7 March 2023, which was accompanied by a copy of the delegate’s decision.

5. On 14 August 2023, the Tribunal made a separate decision to set aside the Department’s decision of 13 January 2023 to refuse to approve Mackillop Catholic College’s nomination, and substituted a decision to approve the nomination (see AAT/MRD decision 2300573 of 14 August 2023). In the course of making of this decision, the Tribunal was satisfied that McKillop Catholic College is an approved work sponsor, and was one at the time that the nomination was approved on 14 August 2023 (it was approved as a Standard Business Sponsor in May 2023, valid until May 2028). As part of its findings in that decision, the Tribunal was satisfied that the position associated with the nominated occupation of Secondary School Teacher was genuine, and that the nominee genuinely intended to perform that occupation (as he has been employed in this role with the applicant since 2020).

6. The Tribunal therefore finds that the criteria in subparagraphs (1)(a) to (c) and (2)(a) and (b) of cl.494.213 are satisfied.

7. Accordingly, the Tribunal is satisfied that the applicant now meets cl.494.213 and has concluded that the matter should be remitted for reconsideration.

8. As the second, third and fourth named applicants applied for the visas on the basis of being members of the family unit of the applicant, their applications will also be remitted to the Department for reconsideration upon its reconsideration of the applicant’s application.

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 494 visa:

    ·cl 494.213 of Schedule 2 to the Regulations

    Alison Mercer
    Member