Li (Migration)

[2018] AATA 3579

Li (Migration) [2018] AATA 3579 (21 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jinping Li
Mr Huanzhang Peng

CASE NUMBER:  1714207

HOME AFFAIRS REFERENCE(S):           BCC2016/2754467

MEMBER:Warren Stooke AM

DATE:21 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application Regional Employer Nomination (Permanent) (Class RN) visa 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; and

The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the secondary applicants meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

· cl.187.311 of Schedule 2 to the Regulations.

Statement made on 21 August 2018 at 5:27pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Quality Assurance Manager - Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Evidence of relevant skills and qualifications provided - Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cls 187.233(3), 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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 August 2016. 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 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 Direct Entry stream, to work in the nominated position of Quality Assurance Manager, as described in ANZSCO 139914.

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 correlating nomination did not seek to meet the requirements of and was not assessed under sub regulation 5.19(3).

6. The applicants were represented in relation to the review by their registered migration agent.

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 has an approved nomination.

   Nomination of a position

9. 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.

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 reviewed the application by the nominating sponsor at a hearing on 12 July 2018 [Tribunal Case No 1710264] and remitted the application to the Department for reconsideration based upon new evidence in the case.

12. The applicant in Tribunal Case No 1710264 gave evidence that the nominee was subject to a contract of employment that would be in place for a period exceeding 2 years, with a current employment contract that commenced on 18 October 2017 with a salary of $60,000 plus superannuation, which has the condition that employment could exceed this period. [Tribunal Folio 74-80]

13. Further, the Tribunal is satisfied that the nominee has the appropriate qualifications and experience to meet the requirements of the nominated position of Quality Assurance manager – ANZSCO 139914. In addition, the applicant [Tribunal Case No 1710264] provided the Tribunal with a copy of the RSMS - Regional Certifying Body advice dated 5 April 2018 pertaining to the position of Quality Assurance Manager in accordance with ANZSCO 139914 and advising a nominated salary of $60,000 p.a. issued by the Department of Economic Development, Jobs, Transports &Resources - Shepparton (r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C)).[Tribunal Folio 51] and evidence to the Tribunal that the nominee has a Master of International Health degree from the University of Queensland, which she attained in July 2015 and an IELTS score overall of 6.5 .[Tribunal Folio 164-165]

14. The Tribunal is satisfied from the evidence provided by the applicant [Tribunal Case No 1710264]  that the sponsored position as Quality Assurance Manager undertakes the following duties:

    a.The functions outlined in the ANZSCO 139914 descriptor;

    b.Co-ordination of the quality systems;

    c.Knowledge of export markets and the examination of the produce to ensure compliance with quality and health requirements;

    d.Fruit picking techniques and grading expertise;

    e.Plant nutrition and pest control using environmentally approved techniques;

    f.HAZARD and Safety management for shed staff;

    g.Eradication of “mille bug”, which can have a devastating effect on the market, if not detected and treated and may potentially double the cost in determining the price.

15. Further, the Tribunal has reviewed the submissions made by the nominating sponsor [Tribunal Case No 1710264] and is satisfied that the nominee subject to this application has the following qualifications and skills to coincide with ANZSCO 139914:

    ·Master Degree in International Public Health;

    ·Appropriate experience in quality management at an overseas food institute;

    ·Demonstrated ability to understand, interpret and present industry knowledge;

    ·Demonstrated ability to apply legislation or knowledge practically;

    ·Demonstrated ability to make decision, work independently and as part of a team;

    ·Demonstrated ability to analyze, identify quality problems and to resolve these issues quickly;

    ·Demonstrated ability to continually improve her knowledge in quality management;

    ·Demonstrated knowledge and application of ISO systems;

    ·Demonstrated knowledge with Hazard Analysis Critical Control Point (HACCP) system.

16. Further, the applicant [Tribunal Case No 1710264] provided evidence that the Quality Assurance Manager will also assist in securing opportunities to export into the China market, where the nominee has knowledge and contacts to support the business. As such, it was explained to the Tribunal, by the applicant, that to grow the business there was a need to expand the current export market and that this is one of the reasons why the owners have acquired additional land to support larger cropping.

17. In addition, evidence was given by the applicant’s accountant [Tribunal Case No 1710264] that the business has the financial capacity to engage the nominee in the position being sponsored for more than two years and that Boumbis Orchards Pty Ltd ACN 147 104 818 would be the employing company. He was also of the view that the engagement of a Quality Assurance manager would add value to the supply chain through the cultivation of citruses plus new varieties, which can be expected to give a better return and increase the profit margin. Further, he was of the view that the business can sustain the applicant, whose services the applicant needs, as an employee.

18. Therefore, cl.187.233 is met.

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

20. On the basis that the first named applicant meets the criterion of cl.187.233 the Tribunal is satisfied that the secondary applicants would also meet the requirements of cl.187.311

    DECISION

21. The Tribunal remits the applications 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; and

    The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the secondary applicants meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    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

    (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.