Sun (Migration)

[2022] AATA 2192

Sun (Migration) [2022] AATA 2192 (7 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Zheqian Sun Mrs Yanying Cao Miss Ningyi Sun

REPRESENTATIVE:  Mr JIA HE (MARN: 1792369)

CASE NUMBER:  2001782

HOME AFFAIRS REFERENCE(S):           BCC2019/5713782

MEMBER:  Joanne Bakas

DATE:  7 June 2022

PLACE OF DECISION:  Adelaide

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(3) of Schedule 2 to the Regulations.

Statement made on 07 June 2022 at 1:20pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – marketing specialist – subject of approved position nomination – refusal of related nomination application set aside on review – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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).

1. The applicants applied for the visas on 12 November 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. 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 Marketing Specialist (ANZSCO 225113).

1. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination of the position had not been approved (187.233(3)).

1. The applicants were represented in relation to the review.

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

1. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is there is an approved nomination of the position.

Nomination of a position

1. 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.

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 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.

1. The first named applicant was nominated by Greentech Group Proprietary Limited for a position in the occupation of Marketing Specialist (ANZSCO 225113). The Department refused the associated nomination and Greentech Group Proprietary Limited applied for review of that decision.

1. On 7 June 2022 the Tribunal decided to set aside the Department’s decision and substituted a decision approving the nomination.

1. As the relevant nomination has now been approved, it follows that the requirement in cl.187.233(3) is now met.

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

1. As the Tribunal has found that the applicant satisfies cl. 187.233(3), it is appropriate that the secondary applicants’ application is also reconsidered by the Department by reference to the outcome of the primary applicant’s application.

DECISION

1. The Tribunal remits the applications 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(3) of Schedule 2 to the Regulations.

Joanne Bakas Member

ATTACHMENT A

187.233        (1)      The position to which the application relates is the position:

(a)nominated in an application for approval that:

(i)identifies the applicant in relation to the position; and

(ii)is made in relation to a visa in a Direct Entry stream; and

(iii)seeks to meet the requirements of subregulation 5.19(12); 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.