Ng (Migration)

[2020] AATA 4793

Ng (Migration) [2020] AATA 4793 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Choon Kian Ng

CASE NUMBER:  1814013

HOME AFFAIRS REFERENCE(S):          BCC2016/2666795

MEMBER:Mr S Norman

DATE:18 November 2020

PLACE OF DECISION:  Sydney

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 18 November 2020 at 9:54am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 12 August 2016. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Cook (ANZSCO: 351411). On 14 May 2018, the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

5. The applicant appeared before the Tribunal on 12 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the representative of the associated nominator. The applicant was represented in relation to the review by his registered migration agent.

6. 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

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

8. In their decision, the delegate said that on 4 April 2018, the nomination application lodged by MULWALA GOLDEN INN RESTAURANT PTY. LTD (the associated nomination) was refused. In response to the Department invitation to comment, the applicant (by their agent) stated (in part): 

   “We note that the Sponsor has lodged an application with the AAT for a review of the refusal decision for the associated nomination application. Being that the AAT has the power to review the refusal decision and substitute the decision for an approval of the nomination if it decides to do so, we request for a decision on this visa application not be made until such time that the AAT makes a final decision … Until such time the AAT makes a decision in the nominator’s application for review that enables the applicants to meet clause 187.233, the nomination remains refused and as such clause 187.233(3) is not met.

9. The delegate then continued that as the nomination had been refused, the applicant did not meet c.187.233(3); or cl.187.233. Next, the delegate considered other visa streams but was not satisfied that same had been met by the applicant. The delegate then refused to grant the applicant the Regional Sponsored Migration Scheme (Subclass 187) visa.

10. By decision dated 18 November 2020 (AAT # 1810117), the Tribunal approved the nomination of the associated nominator (MULWALA GOLDEN INN RESTAURANT PTY. LTD trading as MULWALA GOLDEN INN RESTAURANT). Accordingly, the Tribunal accepts the applicant has met cl.187.233(3).  

11. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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

    Mr S Norman
    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.