Ma (Migration)

[2017] AATA 949

Ma (Migration) [2017] AATA 949 (9 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yiming Ma
Mrs Dong Hua Lai
Mr Jun Long Ma
Miss Xin MA

CASE NUMBER:  1511249

DIBP REFERENCE(S):  BCC2015/250804

MEMBER:Alison Mercer

DATE:9 June 2017

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.

The Tribunal has no jurisdiction in relation to the third named applicant.

Statement made on 09 June 2017 at 5:57pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Approved nomination – Poultry farmer – Applicant continues to be employed by the employer – Secondary applicants not in the migration zone

LEGISLATION

Migration Act 1958, ss 65, 338(2), 347(3)

Migration Regulation 1994, Schedule 2, cl 187.233, r 5.19(4)

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 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 to the Department of Immigration for the visas on 23 January 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Poultry Farmer. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the applicant was not the subject of an approved nomination. The delegate found that the Department had rejected the applicant’s Australian employer’s nomination in respect of him on 22 January 2015.

6. The delegate also refused the visa applications of the second, third and fourth named applicants (the applicant’s wife and children) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 18 August 2015, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr David Chua, as their representative and authorised recipient for correspondence.

8. On 28 March 2017, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 4 May 2017.

9. The applicant appeared before the Tribunal on 4 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The Tribunal discussed with the applicant the fact that unless the associated review application made by his employer, Austong International Pty Ltd (held earlier the same day, and at which he had given evidence as a witness), was successful, the review application in relation to the visas could not succeed.  The Tribunal also indicated that it considered that it had no jurisdiction in relation to the third named applicant, as it appeared that he was not in the migration zone (Australia) at the time that the primary decision was made, nor was he in the migration zone when the review application was lodged.  The applicant and his agent indicated that they understood both issues raised with them by the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets cl.187.233.

    Nomination of a position

12. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

13. 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.

14. At the time of the delegate's decision, the nomination of the applicant by Austong Pty Ltd had been refused by the Department. That employer sought review of that decision with this Tribunal, and on 9 June 2017, the Tribunal set aside the decision to refuse to approve the nomination and substituted a decision to approve the nomination (see AAT 1509642 of 9 June 2017). That decision was made after a hearing with the applicant's employer, from which the Tribunal is satisfied that the applicant continues to be employed in the nominated position with that employer.

15. Accordingly, the Tribunal is satisfied that:

    ·the person who will employ the applicant is the person who made the nomination (being Austong Pty Ltd) (cl.187.233(2));

    ·the nomination has been approved and has not been withdrawn (cl.187.233(3) and (4));

    ·having checked the Department's Integrated Client Service Environment records, that 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) (cl.187.233(4A));

    ·the position is still available (cl.187.233(5)); and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.187.233(6)).

16. Therefore, the Tribunal is satisfied that cl.187.233 is met as a whole.

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

18. As noted above, the second, third and fourth named applicants made their applications on the basis of being members of the family unit of the applicant. In the case of the third named applicant, the Tribunal is satisfied that he was not in the migration zone (Australia) at the time that the primary decision was made, nor at the time that the review application was made. As the decision to refuse the visa applications is reviewable under s.338(2) of the Act, s.347(3) requires that an applicant must be in the migration zone at the time that the primary decision is made and the review application is lodged. The third applicant does not meet this requirement, and the Tribunal finds that he was therefore not validly included in the review application and it has no jurisdiction in respect of him.

19. As the second and fourth named applicants were in the migration zone at all relevant times and applied for visas on the basis of being members of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.

    DECISION

20. 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.187.233 of Schedule 2 to the Regulations.

21. The Tribunal has no jurisdiction in relation to the third named applicant.

    Alison Mercer
    Member