Sin (Migration)

[2021] AATA 1195

Sin (Migration) [2021] AATA 1195 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yick Hei Sin

CASE NUMBER:  1807438

HOME AFFAIRS REFERENCE:               BCC2017/1322165

MEMBER:Rosa Gagliardi

DATE:16 March 2021

PLACE OF DECISION:  Australian Capital Territory

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 16 March 2021 at 11:30am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – 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 (Cth) (the Act).

2. The applicant applied for the visa on 8 April 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Retail Manager (General)’ with JZ CO PTY LTD, trading as ‘Subway Kippax’ in the Australian Capital Territory.  The related nomination was made by the nominator on 9 March 2017.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination for the position was refused.

6. The applicant appeared before the Tribunal on 20 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ruzhou Zhou, Managing Director, Subway Kippax.

7. The applicant was represented in relation to the review by his 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 meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

   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 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 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. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of ‘Retail Manager (General)’ with JZ CO PTY LTD.  Under the section ENS/RSMS declarations, the applicant declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection.

13. The related nomination sought to meet the requirements of r.5.19(4)(h)(ii) in the Regulations, being a position located in regional Australia.  On the information before the Tribunal it finds that the nominator is the person who will employ the applicant.  The Tribunal approved the nomination on 15 March 2021 (Decision 1803565) and it has not been withdrawn.  Indeed, the most recent Letter of Engagement dated 11 March 2021, confirms that the nomination has not been withdrawn and it is evident from the material before the Tribunal, that the nominator is anxious to fill the position with the applicant.

14. The Tribunal finds that the position is still available to the applicant, even though he is offshore.  The Tribunal is also satisfied that the application was not made more than six months after the nomination of the position was approved and indeed finds that this is not the case.

15. The Tribunal is not aware of any ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (as set out in Decision 1803565).  Nor does the Tribunal have any information before it indicating that there has been any court/administrative/disciplinary actions or the like in relation to the nominator.

16. Therefore, cl 187.233 is met.

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

    DECISION

18. 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.

    Rosa Gagliardi
    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.