PHAN (Migration)

[2018] AATA 417

PHAN (Migration) [2018] AATA 417 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HANG KIM PHAN

CASE NUMBER:  1620049

DIBP REFERENCE(S):  BCC2016/1277378

MEMBER:Stavros Georgiadis

DATE:28 February 2018

PLACE OF DECISION:  Adelaide

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.187.223 of Schedule 2 to the Regulations.

Statement made on 28 February 2018 at 12:24pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) visa – Temporary Residence Transition stream – Nominated position – Accountant (General) –  Applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 Schedule 1 Item 1114C Schedule 2 cls 187.223, 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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 24 March 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Accountant (General) ANZSCO 221111. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223 or cl. 187.233 of Schedule 2 to the Regulations as the position to which the nomination application relates, had not been approved and therefore, did not satisfy an essential criterion (being cl.187.223(2)).

6. The applicant appeared before the Tribunal on 26 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence Mr Duy Ly, Director, 4 Ways Pty Ltd who is the sponsoring employer regarding the related matter 1618265.  The related matters were heard together in a combined hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is the visa applicant meets the criteria for grant of the Regional Employer Nomination (Permanent) (Class RN) visa.

   Nomination of a position

9. Clause 187.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

10. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19(7)) here, the whole of the State of South Australia.

    ·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.

11. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made. The Tribunal finds that the position to which the application relates is that of Accountant (General) ANZSCO 221111 being the same as that nominated by the employer sponsor under the requirements of subparagraph 5.19(3), and in relation to the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1. The Tribunal is satisfied therefore, that the applicant meets cl.187.223(1).

12. On 28 February 2018 the Tribunal set aside the decision under review and substituted a decision approving the nomination under r.5.19 in the related matter 1618265. Therefore, the applicant meets cl.187.223(2).

13. At the hearing of this matter the nominating employer’s oral evidence, which the Tribunal accepts, is that the nomination has not since been withdrawn and that the position is still available to the nominee.  The Tribunal accepts that the applicant meets cl.187.223(3) and cl.187.223(5) respectively.

14. The Tribunal is satisfied on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, 4 Ways Pty Ltd, located in regional Australia as defined (here being the whole of the State of South Australia). The applicant therefore, meets cl.187.223(4).

15. The documents available to the Tribunal contain no relevant adverse information about 4 Ways Pty Ltd or others ‘associated with’ that person. The Tribunal accepts 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.

16. The application for the visa was made on 24 March 2016 which is before the nomination was approved by the Tribunal, on 28 February 2018.  As the visa application was made on a date which is not more than 6 months after the approval, the applicant nominee meets cl.187.223(6) of the Regulations.

17. Therefore, overall cl.187.223 is met.

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

    DECISION

19. 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.187.223 of Schedule 2 to the Regulations

    Stavros Georgiadis
    Member