TAIYAKUPT (Migration)

[2019] AATA 6665

TAIYAKUPT (Migration) [2019] AATA 6665 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tanapol TAIYAKUPT
Mrs Sirinthra NIMNOI
Master Sakwarin William TAIYAKUPT

CASE NUMBER:  1813888

HOME AFFAIRS REFERENCE(S):          BCC2017/2230696

MEMBER:Mr S Norman

DATE:5 November 2019

PLACE OF DECISION:  Sydney

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.187.223(2) of Schedule 2 to the Regulations

Statement made on 05 November 2019 at 4:38pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Chef – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 (the Act).

2. The applicants applied for the visas on 23 June 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 (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 Temporary Residence Transition stream, to work in the nominated position of Chef (ANZSCO: 351311). The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations.

5. The applicants appeared before the Tribunal on 31 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Sirinthra Nimnoi (the nominator) and Ms Matchamon Tremian (the visa applicant’s mother). The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

8. 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) – the position is located in Katoomba

   ·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.

9. An application for a Regional Sponsored Migration Scheme (Subclass 187) visa was lodged by the applicant on 23 June 2017. This related to an appointment as a Chef. On 3 April 2018 the nomination lodged by the sponsor/nominator (Gasiinsamut Thai Fusion Restaurant Pty Ltd) was refused by a delegate of the Minister. As that appointment had been refused, the applicant was found to have not met cl.187.223(2); or cl.187.223.

10. Next, the delegate assessed the applicant’s application under the Direct Entry Stream. However, under cl.187.233(1)(a), the position to which a visa application relates must be nominated and approved under r.5.19(4)(h)(ii) or r.5.19(2), as in force before 1 July 2012. Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant was found not to have met cl.187.233; and they were also found not to have met the criteria for the Direct Entry Stream. Next, the delegate considered the applicant’s claims under the Agreement Stream. However, as the correlating position was not nominated by an employer in accordance with Labour agreement, the applicant did not meet the requirements in cl.187.242. Next, the delegate considered all applicants pursuant to cl.187.311 (member of the family unit). However, as none of the applicant met the primary criteria for the grant of the visa, none were eligible for the grant of the visa as members of the family unit who “holds a Subclass 187 visa granted on the basis of satisfying the product criteria for the grant of the visa”.

11. As the applicant was found not to have met the criteria for the grant of the visa, the delegate refused to grant the applicant a Regional Employer Nomination Scheme (Subclass 187) visa.

12. On 5 November 2019, the related nomination approval application was approved (by Tribunal decision - AAT # 1810102), and therefore the applicant satisfies this criteria for the visa. For the reasons set out in AAT # 1810102, the Tribunal is satisfied the person who will employ the applicant is the person who made the nomination; that the nomination has been approved and has not been subsequently withdrawn; that 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); that the position is still available to the visa applicant (and he has worked in the position since January 2013); and that the visa application was made no more than six months after the nomination of the position was approved. However, the Tribunal is satisfied that cl.187.223(2) is met. 

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

    DECISION

14. 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.187.223(2) of Schedule 2 to the Regulations

    Mr S Norman
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position to which the application relates is located in regional Australia.

    (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.