Leung (Migration)

[2023] AATA 3036

Leung (Migration) [2023] AATA 3036 (11 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wai Yin Leung
Mr Chung Wing Lui

REPRESENTATIVE:  Mr Sze Lim (MARN: 1687716)

CASE NUMBER:  1932131

HOME AFFAIRS REFERENCE(S):          BCC2019/4059918

MEMBER:George Hallwood

DATE:11 August 2023

PLACE OF DECISION:  Adelaide

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 11 August 2023 at 9:39am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Customer Service Manager – 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 under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 August 2019. 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. 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the position to which the application relates was not the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 28 June 2023 to give evidence and present arguments. As this was a combined hearing with the associated nomination, the Tribunal also received oral evidence from Ms Catherine Santana on behalf of S&A Homefix Pty Ltd – case number 1928394.

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

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 the first named applicant meets the requirements set out in cl 187.233.

   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. Based on the evidence described below the Tribunal finds:

    ·The Tribunal approved the associated nomination by S&A Homefix Pty Ltd on 11 August 2023, therefore, the position to which the application relates is the subject of an approved nomination in the Direct Entry stream, located in regional Australia;

    ·The position of Customer Service Manager with S&A Homefix Pty Ltd is the one that was the subject of the declaration made as part of the current visa application dated 15 August 2019;

    ·The associated nomination by S&A Homefix Pty Ltd identifies the primary applicant, Ms Wai Yin Leung, in relation to the position of Customer Service Manager;

    ·At the combined hearing Ms Santana told the Tribunal that S&A Homefix Pty Ltd will employ the applicant and this is the same person that made the nomination, therefore, the person who will employ the applicant is the person who made the nomination;

    ·The Tribunal approved the associated nomination today and this has not been subsequently withdrawn;

    ·At this combined hearing the Tribunal considered the evidence in relation to adverse information and found 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);

    ·Ms Santana told the Tribunal at the hearing, and the Tribunal is satisfied that the position is still available to the applicant; and

    ·The visa application was made on 15 August 2019 and the nomination was approved on 11 August 2023, therefore, the visa application was made no more than six months after the nomination of the position was approved.

13. Therefore, cl 187.233 is met.

    CONCLUDING PARAGRAPHS

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

15. As the secondary applicant was refused as a member of the family unit of the primary applicant whose visa application had been refused, the Tribunal recommends that the secondary applicant’s visa be reconsidered together with that of the primary applicant.

    DECISION

16. 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.

    George Hallwood
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.