Siriprapakon (Migration)

[2020] AATA 3949

Siriprapakon (Migration) [2020] AATA 3949 (31 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Miss NISARAT SIRIPRAPAKON Miss THANITAPORN BURAPAKDI

CASE NUMBER:  1808737

HOME AFFAIRS REFERENCE(S):          BCC2017/1025311

MEMBER:  W Frost

DATE:  31 July 2020

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the applications 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 31 July 2020 at 9:36am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Massage Therapist – approved nomination – position is still available to the applicant –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13,5.19, 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (Act).

1. The applicants applied for the Subclass 187 (Regional Sponsored Migration Scheme) visa on 15 March 2017.

1. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Regulations).[1] 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.

   [1] The Regulations referred to in this decision are to the Regulations as they were at the time of application.

1. In the present case, the first named applicant, Ms Nisarat Siriprapakon (Applicant), is seeking the visa in the Direct Entry stream, to work in the nominated position of Massage Therapist with TM Enterprise Pty Ltd, trading as ‘Belconnen Thai Massage’ (Nominator). The related nomination was made by the Nominator on 1 December 2016.

1. The delegate refused to grant the visas on 29 March 2018 because the Applicant did not meet cl.187.233 of Schedule 2 to the Regulations in circumstances where the Nominator’s nomination was refused by a delegate of the Minister on 16 February 2018.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the Applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

1. Clause 187.233 as applicable in this case is set out in full in an Attachment A 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.

1. 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.

1. On the visa application, the Applicant provided details of a related nomination, which is the nomination made by the Nominator for the position of Massage Therapist. Under the section ENS/RSMS declarations, the Applicant responded ‘Yes’ to the sentence “[h]ave 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”.

1. The related nomination sought to meet the requirements of r.5.19(4)(h)(ii), being a position located in regional Australia (as defined). 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 28 July 2020 and it has not been withdrawn.

1. The Applicant is currently employed by the Nominator and the Tribunal finds that the position is still available to the Applicant. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

1. The Tribunal is not aware of any ‘adverse information’ (as defined) known to Immigration about the person who made the nomination or a person ‘associated with’ that person. The Tribunal does not have any information before it indicating that there has been any court/administrative/disciplinary actions or the like in relation to the Nominator. Therefore, cl.187.233 is met.

1. The Tribunal notes that secondary applicants for a Subclass 187 (Regional Sponsored Migration Scheme) visa, such as Ms Thanitaporn Burapakdi, must be a member of the family unit of a primary applicant who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of a visa, and have made a combined application with the primary applicant. The requirement that the primary visa applicant, here being the Applicant, hold a Subclass 187 visa means that the Tribunal cannot presently make a positive finding in relation to the secondary applicant’s claim for a Subclass 187 visa because the primary Applicant does not yet hold such a visa. Accordingly, and in light of the Tribunal’s findings about the primary Applicant, the Tribunal considers that the application of the secondary visa applicant, Ms Thanitaporn Burapakdi, should also be reconsidered by a delegate of the Minister.

1. Therefore, given the Tribunal’s findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

DECISION

1. The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the Applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl.187.233 of Schedule 2 to the Regulations.

W Frost 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.