Liu (Migration)

[2021] AATA 2176

Liu (Migration) [2021] AATA 2176 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu Liu

CASE NUMBER:  1814021

HOME AFFAIRS REFERENCE(S):          BCC2017/2088308

MEMBER:Stavros Georgiadis

DATE:24 May 2021

PLACE OF DECISION:  Adelaide

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

·cl 187.223 of Schedule 2 to the Regulations.

Statement made on 24 May 2021 at 7:48pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Temporary Residence Transition stream – Marketing Specialist – approved nomination – position is still available to the applicant –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.223

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

2. The applicant applied for the visa on 13 June 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. 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations as the position to which the nomination application relates, had not been approved and therefore, did not satisfy cl.187.223(2).

6. The applicant appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Daniel Raihani who is the General Manager of East Burning Pty Ltd, the employer sponsoring the nominee for the nominated occupation in the related AAT casefile 1809759 reviewing the decision to refuse the nomination. The related matters were heard together in a combined hearing.

7. The applicant was represented in relation to the review by his registered migration agent.

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 visa applicant meets the criteria for grant of the Regional Employer Nomination (Permanent) (Class RN) visa.

   Nomination of a position

10. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in reg 5.19) and relevant legislative instrument.

    ·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. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made.  The Tribunal finds that the position to which the application relates is that of Marketing Specialist (ANZSCO 225113) being the same as that nominated by the employer sponsor under the requirements of subparagraph 5.19(3), and in relation to the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1.  The Tribunal is satisfied therefore, that the applicant meets cl.187.223(1).

13. On 24 May 2021, the Tribunal set aside the decision under review and substituted a decision approving the nomination under r.5.19 in the related matter 1809759. Therefore, the applicant meets cl.187.223(2).

14. At the hearing of this matter the nominating employer’s oral evidence, which the Tribunal accepts, is that the nomination has not since been withdrawn and that the position is still available to the nominee.  The Tribunal accepts that the applicant meets cl.187.223(3) and cl.187.223(5) respectively.

15. The Tribunal is satisfied on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, East Burning Pty Ltd.  Regarding the question of location in regional Australia, as defined, the Tribunal notes that cl.187.223(4) ‘Regional Australia’ is defined as a part of Australia specified by the Minister in an instrument in writing. However, the relevant instrument for visa applications made prior 18 March 2018 is currently unclear. Prior to 18 March 2018, cl.187.111 referred to the definition of ‘regional Australia’ in reg 5.19(7), however this was amended by F2018L00262 to refer to reg 5.19(16) without any application or transitional provision. All instruments made under reg 5.19(7) have been repealed from 18 March 2018, and the only instrument made under reg 5.19(16) is expressed to apply only to visa applications made on or after 18 March 2018. Accordingly, it seems there is no current specification for this definition, where the visa application was made prior to 18 March 2018 as is the case here.

16. The applicant, therefore, meets cl.187.223(4).

17. The documents available to the Tribunal contain no relevant adverse information about East Burning Pty Ltd or others ‘associated with’ that person. The Tribunal accepts 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.

18. The application for the visa was made on 13 June 2017 which is before the nomination was approved by the Tribunal, on 24 May 2021.  As the visa application was made on a date which is not more than 6 months after the approval, the applicant nominee meets cl.187.223(6) of the Regulations.

19. Therefore, overall cl.187.223 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.

    DECISION

21. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.223 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.