Tao (Migration)

[2020] AATA 4609

Tao (Migration) [2020] AATA 4609 (23 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kim Phung Tao
Mr Van Hong Nguyen Dang

CASE NUMBER:  1828349

HOME AFFAIRS REFERENCE:               BCC2017/4240362

MEMBER:Rosa Gagliardi

DATE:23 October 2020

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 of Schedule 2 to the Regulations.

Statement made on 23 October 2020 at 12:43pmam  

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – 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 13 November 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 Cook, ANZSCO Code 351411, Unit 3514.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the associated nomination had not been approved by the Department.

6. The applicants appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator, including the Chief Executive Officer of Casino Canberra Limited.

7. The applicants were represented in relation to the review by their 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

   Nomination of a position

9. 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.

10. 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 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. This decision should be read in association with Decision 1821613 which refers to the reasons for the Tribunal setting aside the Departmental decision, on the basis of the extensive information submitted which was not available to the Department at the time of decision.

12. On 23 October 2020 at 9.55am, the Tribunal made a decision that the nomination is approved.  The nomination has not been withdrawn subsequently.

13. Decision 1821613 discusses the context in which the potential ‘adverse information’ arose.  The Tribunal considered that it was appropriate to disregard this information which involved allegations of discrimination and which are being considered separately by the AAT.

14. The position is located in the Australian Capital Territory (ACT).  All postcodes in the ACT fall within a designated regional area as required by this visa class.

15. The Tribunal is also satisfied that the position is still available to the applicant.

16. Finally, the visa application was not made more than six months after the nomination of the position was approved, indeed it was made well before this.

17. Therefore, cl.187.223 is met.

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

    DECISION

19. 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 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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.