Truong (Migration)

[2020] AATA 2528

Truong (Migration) [2020] AATA 2528 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Minh Quang Truong
Miss Trang Thi Van Bui

CASE NUMBER:  1804531

HOME AFFAIRS REFERENCE(S):          BCC2017/223943

MEMBER:Andrew George

DATE:2 April 2020

PLACE OF DECISION:  Darwin

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.187.211 of Schedule 2 to the Regulations;

·cl.187.212 of Schedule 2 to the Regulations;

·cl.187.212A of Schedule 2 to the Regulations;

·cl.187.231 of Schedule 2 to the Regulations;

·cl.187.232 of Schedule 2 to the Regulations;

·cl.187.233 of Schedule 2 to the Regulations; and

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 2 April 2020 at 4:06pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Retail Manager – approved nomination – position is still available to the applicant – subject of an approved nomination – age requirements met – decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 245
Migration Regulations 1994, rr 1.13, 1.15, Schedule 2, cls 187.211, 187.212, 187.231, 187.232, 187.233, 187.234

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 17 January 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, Mr Minh Quang Truong, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General) – 142111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination lodged by Fusion on the Wharf was refused by a delegate on 9 January 2018. The Tribunal set this decision aside in Case Number 1802098 on 1 April 2020 and substituted a decision approving the nomination.

6. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the proprietress of Fusion on the Wharf.

7. The applicants were represented in relation to the review by their registered migration agent, Ms Costello of Nucleus International Recruitment.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Licensing, registration and membership requirements

9. Clause 187.211 applies to all primary applicants if it is mandatory in the State or Territory where the nominated position is located to hold a licence, registration or membership of a professional body to undertake the tasks of a kind to be performed in the occupation to which the position relates. In these cases, the applicant must hold, or be eligible to hold such a licence, registration or membership at the time of the visa application.

10. There is no evidence before the Tribunal that the nominated occupation of Retail Manager (General) – 142111 requires any licensing, registration, or membership in the Northern Territory. Therefore, cl.187.211 is not applicable.

    Employment will be provided

11. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application. For the reasons contained in the decision of 1 April 2020 in Case Number 1802098, in particular at paragraph [16], and is satisfied that the employment referred to in the nomination application will be provided. Therefore, cl.187.212 is met.

    Whether the applicant has engaged in conduct in contravention of the Act

12. An applicant meets cl.187.212A(a) if they have not, in the previous 3 years, engaged in conduct that constitutes a contravention of ss.245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act. In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or providing a benefit, in return for the occurrence of a sponsorship-related event. The meanings of ‘benefit’ and ‘sponsorship-related event’ in this context are provided under s.245AQ of the Act. There is no evidence before the Tribunal that the applicant has engaged in any such conduct. Therefore, cl.187.212A is met.

    Age requirements

13. At the time the visa application is made, an applicant in the Direct Entry stream must either meet certain age requirements, or must be in a class of persons specified in the relevant legislative instrument: cl.187.231. In this case, as the visa application was made before 1 July 2017, the applicant must not have turned 50 at the time of application. As the applicant was born on 12 April 1995, cl.187.231 is met.

    English language proficiency

14. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in a relevant legislative instrument: cl.187.232.

15. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent English if he undertook a an International English Language Testing System (IELTS) test within three years of the date of the application and received a score of at least six for each of the four components.

16. On 29 October 2016, being within three years of the date of application, the applicant received the followings IELTS scores: Listening- 7.0; Reading – 6.5; Writing – 6.5; and Speaking 6.5. Therefore, cl.187.232 is met.

    Nomination of a position

17. 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.

18. 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.

19. The Tribunal notes its decision of 1 April 2020 in Case Number 1802098, also noting that this nomination has not been withdrawn. From the findings in that case, and also the various police certificates before the Tribunal that do not indicate any ‘adverse information’, the Tribunal is satisfied that the criteria in paragraph [18] above is met. Therefore, cl.187.233 is met.

    Skills and qualifications

20. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

21. At the time of application the applicant was not specified in the exempt class of persons and did not have a suitable skills assessment. Therefore, the Tribunal must consider whether the applicant had the qualifications in ANZSCO to perform the occupation if Retail Manager (General) – 142111, which is Skill Level 2. Skills Level 2 requires an Associate Degree, Advanced Diploma, or Diploma. The Tribunal has before it a certificate from Charles Darwin University certifying that the applicant completed a Diploma of Hospitality on 9 January 2017. Therefore, cl.187.234 is met.

22. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. Furthermore, the Tribunal recommends that the application of the second named applicant is reconsidered in light of the findings regarding the applicant.

    DECISION

23. 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.187.211 of Schedule 2 to the Regulations;

    ·cl.187.212 of Schedule 2 to the Regulations;

    ·cl.187.212A of Schedule 2 to the Regulations;

    ·cl.187.231 of Schedule 2 to the Regulations;

    ·cl.187.232 of Schedule 2 to the Regulations;

    ·cl.187.233 of Schedule 2 to the Regulations; and

    ·cl.187.234 of Schedule 2 to the Regulations.

    Andrew George
    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.