THARASRISUTTHI (Migration)

[2020] AATA 746

THARASRISUTTHI (Migration) [2020] AATA 746 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chutiporn THARASRISUTTHI

CASE NUMBER:  1802263

HOME AFFAIRS REFERENCE(S):          BCC2016/1335435

MEMBER:Mr S Norman

DATE:17 March 2020

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations

Statement made on 17 March 2020 at 2:40pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 1 April 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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.

3. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Chef. The delegate refused to grant the visa on 8 January 2018, because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations – nomination.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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.

7. 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.

8. On 3 November 2017, the nomination application lodged by Emirates Hotels (Australia) Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by delegate of the Minister. By letter of 16 November 2017, the applicant was issued an invitation to comment about this information in writing within 28 days. As at the time and date of the delegate’s decision, no response had been received. Therefore the delegate was not satisfied the applicant met cl.187.233(3); or cl.187.233.

9. After then considering other relevant criteria, the delegate refused to grant the applicant a Regional Sponsored Migration Scheme (Subclass 187) visa.

10. On 17 March 2020, the Tribunal set aside the decision for the (divorced[1]) applicant’s associated nominator (Emirates Hotels (Australia) Pty Ltd – AAT # 1729459). In that case, the Tribunal was satisfied the nominator met the requirements of r.5.19 for approval of the nomination of the position in Australia. Therefore, the Tribunal is now satisfied the visa applicant meets meet cl.187.233(3).

    [1] PDF – p.20 (PDF’ refers to the merged Department file on the Tribunal CASEMATE database for AAT # 1729459).

11. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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(3) of Schedule 2 to the Regulations; and

    Mr S Norman
    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.