TAN (Migration)

[2020] AATA 4060

TAN (Migration) [2020] AATA 4060 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YON SERN TAN

CASE NUMBER:  1832806

HOME AFFAIRS REFERENCE(S):          BCC2017/970132

MEMBER:Susan Hoffman

DATE:1 September 2020

PLACE OF DECISION:  Perth

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.187.233

.

Statement made on 01 September 2020 at 12:20pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Customer Service Manager – tribunal set aside nomination application – approved nomination – subject of an approved nomination–decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13, 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 (the Act).

2. The applicant applied for the visa on 12 March 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the nomination application made by The Trustee for the Thai Family Trust had been refused by a delegate of the Minister.

6. The applicant was represented in relation to the review by his registered migration agent.

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 whether or not there is an approved nomination.

   Nomination of a position

9. 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.

10. 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.

11. The Tribunal is satisfied that the position of Customer Services Manager is related to an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The nominator is The Trustee for the Thai Family Trust  which operates a business that was in regional Australia  - Perth - at the time the nomination application was lodged.

12. The position referred to in the nomination application is the same position that was the subject of the declaration made as part of the visa application being reviewed.

13. The Tribunal is satisfied that the person who will employ the applicant is the person who made the nomination, being Mr Tam Thai on behalf of the The Trustee for the Thai Family Trust which operates an IGA supermarket.

14. The Tribunal has reviewed the departmental decision to refuse the nomination and has set that aside, substituting it with a decision to approve the nomination.

15. Submissions made by Mr Thai and Ms Jenny Thai make it clear that the nominee is a highly valued employee and the position remains open to him, and that the nomination has not been withdrawn.

16. As the visa application was made in March 2017 and the nomination was approved on 1 September 2020, the Tribunal is satisfied that the visa application was not made more then six months after the nomination was approved.

17. There was no evidence before the Tribunal of there being any adverse information known to the Department about the person who made the nomination or a person associated with that person.

18. Therefore, cl.187.233 is met.

    CONCLUDING PARAGRAPH

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

    DECISION

20. 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.187.233 of Schedule 2 to the Regulations.

    Susan Hoffman
    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.