Foo (Migration)

[2019] AATA 3532

Foo (Migration) [2019] AATA 3532 (17 June 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Ms Mee Theng Foo Mr Seng Tong Tee

Master Zhao Yuan Tee

CASE NUMBER:  1726612

HOME AFFAIRS REFERENCE(S):           BCC2017/615494

MEMBER:  Karen McNamara

DATE:  17 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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 17 June 2019 at 9:34am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Temporary Residence Transition stream – nomination refusal – evidence provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 14 February 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 (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 Ms Mee Theng Foo (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).

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 of a position in relation to the applicant had not been approved.

6. The applicants appeared before the Tribunal by video from Perth on 22 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Peter Zappia on behalf of the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their 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

1. The issue in the present case is whether the first named applicant (Ms Thang Foo) meets the requirements of cl.187.223.

Nomination of a position

1. 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.

2. In addition, this criterion also requires that:

   ·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 located in regional Australia (as defined in r.5.19)

   ·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.

3. The nominating employer, Sunlong Fresh Foods Pty Ltd, applied to the Department of Immigration for approval of a nomination in relation to the position of Cook (ANZSCO 351411). That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

4. Sunlong Fresh Foods Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT case No. 1717733). On 17 June 2019, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

5. Based on the evidence before it, the Tribunal is satisfied that:

   ·The person who will employ the applicant in the nominated position (that is Sunlong Fresh Foods Pty Ltd) is the person who made the nomination.

   ·Sunlong Fresh Foods Pty Ltd’s nomination for the position of Cook has been approved by the Tribunal and has not been subsequently withdrawn.

   ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

   ·The evidence before the Tribunal indicates that the nominator’s business, which is operated by the nominator and the position are located in Canning Vale, postcode 6155 which is a postcode specified in the relevant instrument as being in regional Australia.

   ·The nominator advised at hearing the position is still available to Ms Foo; and

   ·The visa application was made at the same time as the employer nomination and was therefore not made more than six months after the nomination was approved.

6. On the basis of the above, the Tribunal finds that the requirements of cl.187.223 are met.

7. Mr Seng Tong Tee and Master Zhao Yuan Tee applied on the basis of being a member of the family unit of the first named applicant. The application by Mr Seng Tong Tee and Master Zhao Yuan Tee will be determined by reference to the outcome of Ms Thang Foo’s application on remittal to the Department for consideration.

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

DECISION

1. The Tribunal remits the applications 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.

   Karen McNamara 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.