Liu (Migration)

[2019] AATA 3239

Liu (Migration) [2019] AATA 3239 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Jiajing Liu
Mr Kun Liang

CASE NUMBER:  1815409

HOME AFFAIRS REFERENCE(S):          BCC2017/1936638

MEMBER:Amanda Mendes Da Costa

DATE:2 August 2019

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.187.223(2) of Schedule 2 to the Regulations; and

The Tribunal directs that the second named applicant meets the criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa as the member of the family unit of a person who has satisfied the primary criteria.

Statement made on 02 August 2019 at 1:21pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – nomination application now approved by Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 1 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 (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 is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations because the delegate was not satisfied that there was an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

6. The applicants appeared before the Tribunal on 8 July 2019 to give evidence and present arguments. The hearing was held as a combined hearing with the nomination refusal case of the first named applicant’s prospective employer Chopstix Mildura Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their 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 first named applicant meets the requirements of cl.187.223(2) of Schedule 2 to the Regulations.

10. The Tribunal notes that on 30 July 2019 it made a decision, approving the nomination made by the first named applicant’s prospective employer Chopstix Mildura Pty Ltd, a standard business sponsor, of an occupation relating to the first named applicant.

11. Accordingly, the Tribunal is satisfied that the first named applicant meets the requirements of cl.187.223(2).

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

13. In relation to the second named applicant, the Tribunal finds that as the first named  applicant satisfies the criteria for grant of a Regional Employer Nomination (Permanent) (Class RN) visa, the second named applicant meets the criteria for a Subclass 187 visa as a members of the family unit of a person who has satisfied the primary criteria.

    DECISION

14. 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.187.223(2) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member