Ge (Migration)

[2018] AATA 3873

Ge (Migration) [2018] AATA 3873 (27 August 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Xiaoyu Ge

CASE NUMBER:  1706125

DIBP REFERENCE(S):  BCC2016/999677

MEMBER:  Cathrine Burnett-Wake

DATE AND TIME OF

ORAL DECISION AND REASONS:          27 August 2018 at 12:24 pm (VIC time)

DATE OF WRITTEN RECORD:               3 September 2018

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(3) of Schedule 2 to the Regulations.

Statement made on 27 August 2018 at 12:24pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – nominated position of an accountant – Tribunal set aside and substituted a decision to approve the nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cl 187.233

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 March 2017 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (the Act).

1. At the hearing on 27 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The applicant applied for the visa on 9 March 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Accountant.

1. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

1. The applicant appeared before the Tribunal on 27 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. The applicant was represented in relation to the review by his registered migration agent.

1. 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 if there is an approved nomination.

Nomination of a position

1. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

1. 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.

1. The applicant's nominating employer, The Trustee for BTA unit Trust, applied to the Department for the approval of the position of Accountant in respect of the applicant. The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

1. On 27 August 2018, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination in respect of the applicant under r.5.19(4).

1. Therefore, cl.187.233 is met.

1. 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 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(3) of Schedule 2 to the Regulations.