Loh (Migration)

[2019] AATA 3975

Loh (Migration) [2019] AATA 3975 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Ka Sheng Loh

CASE NUMBER:  1726180

HOME AFFAIRS REFERENCE(S):           BCC2017/1018992

MEMBER:C. Packer

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

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.187.233(3) of Schedule 2 to the Regulations

Statement made on 13 August 2019 at 1:56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Dentist –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, r 5.19, 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 15 March 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

2. 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. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Dentist [ANZSCO 252312] with the nominator Crotty Dental.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

4. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision.

5. Clause 187.233(3) requires that the nomination has been approved. The nominator Crotty Dental applied for approval on 15 March 2017, but on 4 September 2017 a delegate of the Minister for Immigration rejected the nominator’s application for approval of the nomination of a position in Australia under r.5.19. The nominator then applied to the Tribunal for a review of the delegate’s refusal decision.

6. On 13 August 2019 the Tribunal set aside the decision to reject the nominator’s application for approval of the nomination of a position of Dentist [ANZSCO 252312] and substituted a decision approving the nomination. Therefore, cl.187.233(3) is met.

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

   DECISION

8. 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.187.233(3) of Schedule 2 to the Regulations

   C. Packer
   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.