Tran (Migration)

[2017] AATA 103

Tran (Migration) [2017] AATA 103 (12 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thiet Khuong Tran
Ms Thi Hai Yen Ta
Master Minh Dao Benjamin Tran

CASE NUMBER:  1600650

DIBP REFERENCE(S):  BCC2015/2232859

MEMBER:Steve Georgiadis

DATE:12 January 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 12 January 2017 at 6:20pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Position of Café or Restaurant Manager – No approved nomination – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2, cl 187.223, cl 187.311, r 5.19

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 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 to the Department of Immigration for the visas on 4 August 2015. 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111). This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the nomination for the position was not approved at the time of the delegate’s decision - 187.223(2). The delegate also considered that the second named applicants are not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore did not satisfy cl.187.311.

6. The applicant appeared before the Tribunal on 12 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Michelle Beh on behalf on the nominating employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The related matters 1517339 and 1600650 were heard together.

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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants meet the criteria for the grant of the (Class RN) visas.

   Nomination of a position

10. Clause 187.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

11. 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(7))

    ·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. The Tribunal has examined the visa applications on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor for a holder of the 457 visa (cl.187.223(1)).

13. The oral evidence before the Tribunal from the applicant and the nominating employer is that the position has not been subsequently withdrawn and is still available to the applicant - (cl.187.223(3) and cl.187.223(5)). 

14. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, MSL BEH AND DYS LOKE ATF TIGER TRUST trading as Basil and Mint, in Morley WA located in regional Western Australia (being the whole of the State of WA). Thus the first named applicant meets cl.187.223(4).

15. 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).

16. On 12 January 2017 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related AAT case-file number 1517339 for the reasons set out in the Decision Record for that case, refusing the nomination.

17. At the hearing, the Tribunal put to the applicants that without an approved nomination, the applicants would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.223(2)) for the grant of the visa and that their applications would, on that basis, be unsuccessful. The applicant conveyed to the Tribunal that they understood and accept that in circumstances where the nomination for the position is not approved, it would not be open for the visa applications to be successful given approval of the nomination is one of the essential requirements for the grant of the visas.

18. Having considered the available evidence before it, the Tribunal is satisfied that the position of Café or Restaurant Manager (ANZSCO 141111) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.223(2). The Tribunal finds that the nomination of the position to which the application relates is not approved.   

19. Therefore, cl.187.233 is not met.

20. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

21. The Tribunal finds that the other named applicants are not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore do not satisfy cl.187.311.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Stavros Georgiadis
    Member