LIAO (Migration)

[2018] AATA 4099

LIAO (Migration) [2018] AATA 4099 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jinfa LIAO
Ms XINGPING WU

CASE NUMBER:  1701131

HOME AFFAIRS REFERENCE(S):           BCC2016/651887

MEMBER:Alan McMurran

DATE:30 August 2018

PLACE OF DECISION:  Sydney

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 30 August 2018 at 1:29pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – approval of nomination – marketing specialist – nomination approved – no adverse information – position available – 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 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 15 February 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 marketing specialist.

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 related nomination lodged by ABC Poultry Farm Pty.Ltd was refused.

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

7. The Tribunal finds that the delegate’s decision is an MRT reviewable decision under subsection 338 (2) and that the applicant has made a valid application for review under section 347 of the Act.

8. The Tribunal has before it the Departmental file[1] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and the information available to it in related Tribunal file 1620705.

   [1] BCC 2016/651887

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl. 187. 233(3). Specifically, for applicants in the direct entry stream, cl. 187.233(3) requires that the Minister has approved the nomination.

    Nomination of a position

11. 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.

12. 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.

13. On the information before it, the Tribunal finds that the person who will employ the applicant is ABC Poultry Farm Pty Ltd (the nominator).

14. On 30 August 2018, the Tribunal on review approved the nomination by the nominator for the occupation of Marketing Specialist, which nomination had not been withdrawn.

15. The Tribunal is satisfied it is not aware on the information before it of any adverse information known to immigration about the nominator. Regulation 1. 13A and B include information as to any criminal offending as found by a court in respect of a law of a State, Commonwealth or Territory, any administrative action or investigation undertaken, or any act of insolvency, within the previous 3 years.

16. The Tribunal is satisfied it is not aware of any information to the effect that the position nominated is no longer available to the applicant. The Tribunal finds that the nominator has supported its application and the application by the nominee and that the nominated position remains available to the applicant on the terms as set out in an employment contract entered into between the parties.

17. The Tribunal finds that the review applicant has made the application no more than 6 months after the nomination of the position was approved.

18. The Tribunal is satisfied that the review applicant is the subject of an approved nomination as set out above, and in accordance with cl. 187. 233 (3) of the Regulations.

19. Therefore, cl.187.233 is met.

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

    Secondary Applicant

21. The secondary applicant, Ms. Xingping Wu, is a member of the family unit of the primary applicant whose visa was granted on the basis of satisfying the primary criteria. The application was a combined application with the primary applicant.

22. The Tribunal finds that the secondary applicant meets the criteria in cl. 187. 311

    DECISION

23. 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.

    Alan McMurran
    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.