Luu (Migration)

[2020] AATA 4095

Luu (Migration) [2020] AATA 4095 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Nhan Hoa Luu (applicant)
Mr Ha Anh Nguyen (second applicant)

CASE NUMBER:  1804289

HOME AFFAIRS REFERENCE(S):          BCC2017/129664

MEMBER:Jane Bell

DATE:17 September 2020

PLACE OF DECISION:  Melbourne

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 17 September 2020 at 5:35pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Retail Manager – tribunal set aside nomination application –approved nomination – position is still available to the applicant –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 360
Migration Regulations 1994, rr 1.13, 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 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 11 January 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO 142111).

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 delegate was not satisfied that the applicant had an approved nomination with her employer, which had not ceased.

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

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 applicant has an approved nomination for a position with her employer, which has not ceased.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

12. It is not disputed that the applicant’s employer did not have an approved nomination in respect of the applicant at the time of the Department’s decision.

13. However, the Tribunal is satisfied that the employer lodged a review application with the Tribunal in relation to the refusal of its nomination of the applicant for the position of Retail  Manager. On 17 September 2020, the Tribunal set aside the Department’s refusal decision and substituted a decision approving the nomination application by the nominator in the Direct Entry stream that identifies the applicant and the position of Retail Manager for the applicant.

14. Accordingly, the Tribunal is satisfied on the basis of the evidence before it that:

    ·the position of Retail Manager to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream, located at 38 Scarr Street, Cloncurry, QLD 4824 in regional Australia that identifies the applicant as the holder of a Subclass 457 visa;

    ·the position of Retail Manager was the one that was the subject of the declaration that was required to be made as part of the current visa application dated 11 January  2017;

    ·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 of the Regulations) based on a review of the Department’s records;

    ·the position is still available to the applicant based on the evidence from the applicant’s employer and the Employment Agreement between the applicant’s employer and the applicant dated 14 July 2020 to work in the nominated position as a paid employee, the Organisational Chart which confirms that the position continues to fit into the business activity, the applicant’s position description, ATO BAS statements and the applicant’s PAYG Payment Summaries for recent years including 2020; and

    ·the visa application was made no more than six months after the nomination of the position was approved.

15. Therefore, cl.187.233 is met.

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

17. The delegate made a decision that the second named applicant did not satisfy cl. 187.311, which requires that he be a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having a combined application with the primary applicant.

18. The Tribunal notes that the second named applicant’s application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    DECISION

19. 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.

    Jane Bell
    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.