Hsiao (Migration)

[2023] AATA 1121

Hsiao (Migration) [2023] AATA 1121 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yen-Wei Hsiao
Ms Wen-Sin Tsai

REPRESENTATIVE:  Mr Minghao Wang (MARN: 1382452)

CASE NUMBER:  1924356

HOME AFFAIRS REFERENCE(S):          BCC2017/2530726

MEMBER:Angela Julian-Armitage

DATE:20 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant  and the secondary applicant meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·clauses 187.233, 187.223, 187.242 and 187.311 of Schedule 2 to the Regulations.

Statement made on 20 April 2023 at 2:41pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Massage Therapist – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs to refuse to grant the applicants’ Regional Employer Nomination (Permanent) (Class RN) visas pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 July 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) (the Regulations). The primary criteria must be satisfied by at least one applicant. The other member of the family unit, who is also an applicant for the visa, only needs satisfy the secondary criteria. The applicant 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 primary applicant  seeks the visa in the Direct Entry stream to work in the nominated position of a Massage Therapist (ANZSCO 411611).

5. The delegate refused to grant the visas due to the applicant not meeting cl 187.233 of Schedule 2 to the Regulations as the nomination in respect to the position had been refused by the Department.

6. The applicants appeared before the Tribunal on 14 December 2022, with their representative, give evidence and present arguments,

7. For the sake of completion, the Tribunal finds that there is no relevant issue jurisdictionally relating to the secondary applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is  whether there is an approved nomination for the position the applicant is to fill is in place.

   Nomination of a position

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

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

12. In the present case, this Tribunal approved the nomination for the position on 20 April 2023. The applicant’s position is still available to him, one which he occupies currently as the holder of  a Bridging visa allowing him to work. In addition, there is no adverse information before this Tribunal about the applicant or an associate of the applicant.

13. Therefore, cl 187.233 is met.

14. In light of the above findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant  and the secondary applicant meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    • clauses 187.233, 187.223, 187.242 and 187.311 of Schedule 2 to the Regulations.

    Angela Julian-Armitage
    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.