Xu (Migration)

[2021] AATA 3119

Xu (Migration) [2021] AATA 3119 (2 July 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xuanyue Xu

CASE NUMBER:  1828504

DIBP REFERENCE(S):  BCC2018/501920

MEMBER:Vanessa Plain

DATE OF DECISION:  2 July 2021

DATE CORRIGENDUM

SIGNED:31 August 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.The words in paragraph 5 “The delegate refused to grant the visa because the applicant did not meet cl 187.223(3) of Schedule 2 to the Regulations because on the evidence submitted the nominated tasks to be performed in the position did not correspondence to the task in the occupation specified by the Minister (ANZ225113)” should be replaced with “The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations as the delegate of the Minister for Immigration had not approved the nomination of the applicant’s employer.”

2.The words in paragraph 16 “As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed” should be replaced with “As the requirements that must be met by a person seeking the visa in the Direct Entry stream have been met, the decision under review must be remitted.”

Vanessa Plain
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xuanyue Xu

CASE NUMBER:  1828504

HOME AFFAIRS REFERENCE(S):          BCC2018/501920

MEMBER:Vanessa Plain

DATE:2 July 2021

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 187.223(3) of Schedule 2 to the Regulations

Statement made on 2 July 2021 at 6:00pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Marketing Specialist – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.223, 187.233; rr 1.13, 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 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 30 January 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 Marketing Specialist (ANZSCO 225113).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.223(3) of Schedule 2 to the Regulations because on the evidence submitted the nominated tasks to be performed in the position did not correspondence to the task in the occupation specified by the Minister (ANZ225113).

6. The applicant appeared before the Tribunal on 2 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr David Gillespie, the sole director of the nominator business in the related matter for the nomination review application (AAT case file 1826199).  The matters were heard concurrently in a combined hearing.

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

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 meets the requirements of cl.186.233(3).

   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 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 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. The nominating employer, the Trustee for the Exmouth Resort Family Trust, applied to the Department of Immigration and Border Protection for approval of a nomination in relation to the position of Marketing Specialist (ANZSCO 225113). That nomination was refused by the Department and consequently the applicant’s visa application was refused.

13. The Trustee for the Exmouth Resort Family Trust applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1826199). On 2 July 2021, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.186.233(3) of Schedule 2 to the Regulations.

14. The Tribunal notes that the applicant provided a detailed three page signed statement in response to adverse information provided about her in the nominator’s case (Case No 1826199).  In the related application, the Tribunal set out its findings in relation to the adverse information, namely that it was reasonable to disregard it.  For the avoidance of doubt, the findings in case no 1826199 are equally applicable in this application.

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

16. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    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(3) of Schedule 2 to the Regulations.

    Vanessa Plain
    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.