Fang (Migration)

[2018] AATA 5593

Fang (Migration) [2018] AATA 5593 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wan-Lin Fang
Ms Yu-Han SU

CASE NUMBER:  1713123

HOME AFFAIRS REFERENCE(S):           BCC2016/2077561

MEMBER:Peter Emmerton

DATE:29 November 2018

PLACE OF DECISION:  Adelaide

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.187.223 of Schedule 2 to the Regulations

Statement made on 29 November 2018 at 1:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Aquaculture Farmer – subject of an approved nomination – nomination application now approved by Tribunal – relevant position still available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 187.223

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 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 17 June 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Aquaculture Farmer, ANZSCO 121111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicants appeared before the Tribunal on 29 November to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jack Lee, on behalf of the nominating entity, Lee Mu Tsai Investments Pty Ltd.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination has been approved.

11. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

12. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

    Nomination of a position

13. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

14. 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.

15. An application for Regional Employer Nomination (Class RN) visa was lodged by Lee Mu Tsai Investment Pty Ltd, on 12 June 2016, in relation to an appointment of ‘Aquaculture Farmer (ANZSCO 121111)’. Wan Lin Fang (DoB: 22 March 1984) claimed to satisfy the criteria for subclass 187 visa under the Temporary Residence Transition stream.

16. On 20 June 2017 the application was refused.

17. On 29 November 2018, the Tribunal set the Department’s decision aside and substituted a decision approving the appointment for the position of Aquaculture Farmer.[1] Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(4)(h)(ii) nomination application. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl.187.223(1) is met.

    [1] See MRT decision file ref. 1710614

18. The Tribunal relies on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl. 187.223(2) is met. In light of the Tribunal’s approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.187.223(3).

19. The Tribunal is also satisfied on all the evidence before it that the relevant appointment has not been withdrawn and is still available to the visa applicant. Therefore cl.187.223(4) and (5) are met. The application for the visa was made on 12 June 2016, which is before the nomination was approved on 29 November 2018. As the visa application was made on a date which is no more than 6 months after the approval, cl.187.223 (6) is met.

20. The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.187.223. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.decision

    DECISION

21. 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.187.223 of Schedule 2 to the Regulations

    Peter Emmerton
    Member

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.