Guo (Migration)

[2022] AATA 1620

Guo (Migration) [2022] AATA 1620 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Caiyun Guo
Mr Changqu Lin
Master Yifan Lin
Miss Xuerui Lin

REPRESENTATIVE:  Mr Robert Bock (MARN: 9250357)

CASE NUMBER:  1904070

HOME AFFAIRS REFERENCE(S):          BCC2017/4281661

MEMBER:W Frost

DATE:5 April 2022

PLACE OF DECISION:  Canberra

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 187.233 of Schedule 2 to the Regulations.

Statement made on 05 April 2022 at 9:00am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – café or restaurant manager – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), r 5.19(4)(h)(ii)(A), Schedule 2, cls 187.233, 187.311

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 Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicants applied for the visas on 15 November 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 (Cth) (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 Caiyun Guo (Applicant), is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Café or Restaurant Manager’ with Doncaster Bistro Pty Ltd (Nominator). The related nomination application was made on 15 November 2017.

5. The delegate refused to grant the visas because the Applicant did not meet cl 187.233 of Schedule 2 to the Regulations in circumstances where the Nominator’s nomination for the position was refused by a delegate of the Minister on 17 January 2019.

6. The Applicant appeared before the Tribunal on 10 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Raymond Yeong, who was representing the Nominator in his capacity as the sole director of the business. The applicants were represented in relation to the review by their registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

9. Clause 187.233 as applicable in this case is set out in full in ‘Attachment A’ 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.

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 reg 1.13A and reg 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. On the visa application, the Applicant provided details of a related nomination, which is the nomination made by the Nominator for the position of ‘Café or Restaurant Manager’. Under the section ENS/RSMS declarations, the Applicant responded ‘Yes’ to the sentence ‘[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection’.

12. The related nomination sought to meet the requirements of r.5.19(4)(h)(ii)(A), being a position located in ‘regional Australia’ (as defined). On the information before the Tribunal, it finds that the Nominator is the entity who will employ the Applicant. The Tribunal approved the nomination on 28 March 2022 and it has not been withdrawn.

13. The Applicant is currently employed by the Nominator and the Tribunal finds that the position is still available to the Applicant. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

14. The Tribunal is not aware of any ‘adverse information’ (as defined) known to Immigration about the person who made the nomination or a person ‘associated with’ that person. The Tribunal does not have any information before it indicating that there has been any court/administrative/disciplinary actions or the like in relation to the Nominator.

15. Therefore, cl 187.233 is met.

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

17. The Tribunal also notes that, under cl.187.311 of the Regulations, secondary applicants for a Subclass 187 (Regional Sponsored Migration Scheme) visa, such as the Applicant’s dependents for the purpose of this application, being Mr Changqu Lin, Master Yifan Lin and Miss Xuerui Lin, must be a member of the family unit of a primary applicant who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of a visa, and have made a combined application with the primary applicant. The requirement that the primary visa applicant, here being the Applicant, hold a Subclass 187 visa means that the Tribunal cannot presently make a positive finding in relation to the secondary applicants’ claims for Subclass 187 visas because the primary Applicant does not yet hold such a visa. Accordingly, and in light of the Tribunal’s findings about the Applicant in this decision, the Tribunal considers that the applications of the secondary visa applicants, Mr Changqu Lin, Master Yifan Lin and Miss Xuerui Lin, should also be reconsidered by a delegate of the Minister.

    DECISION

18. 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 187.233 of Schedule 2 to the Regulations.

    W Frost
    Member

    
    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (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.