Nguyen (Migration)

[2021] AATA 3580

Nguyen (Migration) [2021] AATA 3580 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hung Nguyen (applicant)
Mrs Thanh Nhung Le (second applicant)
Ms Le Minh Thao Nguyen (third applicant)
Mr Hoang Nguyen (fourth applicant)

CASE NUMBER:  1831225

HOME AFFAIRS REFERENCE(S):          BCC2018/12011

MEMBER:Jane Bell

DATE:7 September 2021

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 07 September 2021 at 11:12am

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.233, 187.311

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 (Cth) (the Act).

2. The applicants applied for the visas on 2 January 2018. 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 (Cth) (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 Travel Agency Manager (ANZSCO 142116).

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 employer’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the employer failed to provide evidence to demonstrate that the tasks to be performed in the nominated position corresponded to the tasks of an occupation specified in the relevant instrument in writing current at the time the nomination was lodged. The delegate also refused to grant a Subclass 187 visa to the second, third and fourth named applicants on the grounds 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 the applicants met the primary visa criteria in their own right.

6. The applicant appeared before the Tribunal on 1 September 2021, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Richard Siegersma, director of Footstep Travel Group Pty Ltd.

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 applicant has an approved nomination for a position with his 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 reg 1.13A and reg 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 Travel Agency Manager. On 7 September 2021, 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 Travel Agency Manager for the applicant.

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

    • the position of Travel Agency Manager to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream;
    • the position of Travel Agency Manager was the one that was the subject of the declaration that was required to be made as part of the current visa application;
    • 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 dated 20 January 2020 between the applicant’s employer and the applicant to work in the 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, recent financial statements and ATO Business Activity Statements; 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, third and fourth named applicants did not satisfy cl 187.311, which requires that they be members 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, third and fourth named applicants’ applications 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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.