Then (Migration)

[2018] AATA 1596

Then (Migration) [2018] AATA 1596 (5 April 2018)

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Barry Osbert Jit Yang Then

CASE NUMBER:  1722720

DIBP REFERENCE(S):  BCC2017/2136838

MEMBER:Mark Bishop

DATE:5 April 2018

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(3) of Schedule 2 to the Regulations

Statement made on 05 April 2018 at 2:04pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination - Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Applicant subject of approved nomination – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 Immigration and Border Protection 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 16 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Customer Service Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations. On 8 August 2017 the applicant was advised an application for nomination for a Regional Sponsored Migration Scheme (subclass 187) visa) was refused. The applicant did not respond to a request concerning this finding within the relevant time frame. Accordingly the delegate determined the requirements of criterion 187.233(3) were not met.

6. The matter was resolved on the papers.

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 the applicant satisfies cl.187.233(3).

9. On 26 March 2018 the applicant forwarded a copy of the decision record in Case number 1718929 to the Tribunal. That case involved a review application by The Trustee for the Yang Zhen Family Trust. The Tribunal in that matter on 7 March 2018 set aside the decision of the delegate of 8 August 2017 and substituted a decision approving the nomination.

10. Hence the applicant now meets cl.187.233(3) of Schedule 2 to the Migration Regulations.

11. Given these findings, 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

    Mark Bishop
    Member