Thai (Migration)

[2022] AATA 4288

Thai (Migration) [2022] AATA 4288 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Truc Thai

REPRESENTATIVE:  Mrs Lindy Noone (MARN: 0322507)

CASE NUMBER:  1904502

HOME AFFAIRS REFERENCE(S):          BCC2018/1218561

MEMBER:Jane Bell

DATE:2 December 2022

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

Statement made on 02 December 2022 at 1:09pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry nomination stream – agricultural technician – subject of approved position nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B), 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 (Cth) (the Act).

2. The applicant applied for the visa on 14 March 2018. 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 (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.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Agricultural Technician (ANZSCO 311111).

5. The delegate refused the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because, based on the information before the delegate, the applicant had not demonstrated a need to employ the nominee on a full time basis as there was another employee fulfilling a similar role and the division of tasks was not explained.

6. Ms Angela Ruffo, a director of the applicant, appeared before the Tribunal on 12 April 2022 to give evidence and present arguments on the applicant’s behalf.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved nomination for a position with her employer, which has not ceased.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

12. It is not disputed that the applicant’s employer did not have an approved nomination in respect of the applicant at the time of the Department’s decision.

13. However, the Tribunal is satisfied that the employer lodged a review application with the Tribunal in relation to the refusal of its nomination of the applicant for the position of Agricultural Technician. On 3 October 2022, the Tribunal set aside the Department’s refusal decision and substituted a decision approving the nomination application by the nominator in the Direct Entry stream that identifies the applicant and the position of Agricultural Technician for the applicant.

14. Accordingly, the Tribunal is satisfied on the basis of the evidence before it that:

    ·the position of Agricultural Technician to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia;

    ·the position of Agricultural Technician was the one that was the subject of the declaration that was required to be made as part of the current visa application;

    ·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 of the Regulations) based on a review of the Department’s records;

    ·the position is still available to the applicant based on the evidence from the applicant’s employer and the Employment Agreement between the applicant’s employer and the applicant to work in the position as a paid employee, the Organisational Chart which confirms that the position continues to fit into the business activity, the applicant’s position description, recent financial statements and ATO Business Activity Statements; and

    ·the visa application was made no more than six months after the nomination of the position was approved.

15. Therefore, cl.187.233 is met.

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

    decision

17. 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.

    Jane Bell
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.