Foo (Migration)

[2017] AATA 2798

Foo (Migration) [2017] AATA 2798 (17 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yue Chong Foo

CASE NUMBER:  1517141

DIBP REFERENCE(S):  BCC2015/829751

MEMBER:Alison Mercer

DATE:17 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 17 November 2017 at 4:45pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Nomination now approved

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19(4), 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 Immigration to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 14 March 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Primary Products Inspector (not elsewhere classified, or NEC, ANZSCO code 311399). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant’s Australian employer’s nomination of him had been refused by the Department on 7 October 2015.

6. The Tribunal received a review application from the applicant on 12 December 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Rick Gunn, to be his representative and authorised recipient for correspondence.

7. The applicant appeared before the Tribunal on 5 May 2017 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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.

11. The Tribunal finds that the applicant’s employer, Covino Farms Pty Ltd, lodged a review application with the Tribunal on 28 October 2015 in relation to the refusal of its nomination of the applicant for the position of Primary Products Inspector (nec), and that on 17 November 2017, the Tribunal set aside the Department’s refusal decision and substituted a decision to approve the nomination made by Covino Farms Pty Ltd [see AAT decision 1514580 of 17 November 2017].

12. Accordingly, the Tribunal is satisfied on the available evidence (which includes evidence given in relation to the nomination review case lodged by Covino Farms Pty Ltd) that:

    ·Covino Farms 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.

13. Therefore, the Tribunal finds that cl.187.233 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

14. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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