Xu (Migration)

[2019] AATA 3098

Xu (Migration) [2019] AATA 3098 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ziang Xu

CASE NUMBER:  1811192

HOME AFFAIRS REFERENCE(S):          BCC2017/139452

MEMBER:Stavros Georgiadis

DATE:23 May 2019

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations.

.

Statement made on 23 May 2019 at 1:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – 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 187.223

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).

2. The applicant applied for the visa on 11 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, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, as the appointment to which the visa application relates had not been approved and therefore, did not satisfy an essential criterion (being cl.187.233(3)).

6. The Tribunal decided to determine the matter on the documentary evidence before it. The applicant was represented in relation to the review by his registered migration agent.

7. The Tribunal received written submissions and supporting material on behalf of the applicant. The Tribunal also had conducted a hearing with the nominating employer, The Sky Fortune Pty Ltd, in that related matter 1809255 for the nomination of the position. Mr Ziang Xu was present for the duration of that hearing conducted on 23 May 2019 approving the nomination.

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 visa applicant meets the criteria for grant of the Regional Employer Nomination (Permanent) (Class RN) visa.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires 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 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.

12. The Tribunal notes from the visa application on the Department file, that the required declaration has been made.  The Tribunal finds that the position to which the application relates is that of Cook (ANZSCO 351411) being the same as that nominated by the employer sponsor under the requirements of subparagraph 5.19(4)(h)(ii), and in relation to the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1.  The Tribunal is satisfied that the applicant meets cl.187.233(1).

13. The Tribunal is satisfied, on the documentary before it, that the person who will employ the applicant is the nominator in the application for approval, The Sky Fortune Pty Ltd. The Tribunal accepts that the applicant meets cl.187.233(2).

14. On 23 May 2019 at the end of the hearing at 12:04 pm, the Tribunal made an oral decision (with oral reasons given) that the nomination for the position to which the application relates, is approved. The applicant therefore, meets cl.187.233(3).

15. The Tribunal accepts from the evidence provided by a Director of the nominator, Mr Terry Lai, that the nomination has not been withdrawn and that the position is still available to the applicant.  Indeed the applicant is presently working full time as a Cook in the business. The Tribunal accepts that the applicant meets cl.187.233(4) and cl.187.233(5) respectively.

16. There is no evidence of any ‘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). The Tribunal accepts that the applicant meets cl.187.233(4A).

17. The application for the visa was made on 11 January 2017 which is before the nomination was approved on 23 May 2019. As the visa application was made on a date which is not more than 6 months after the approval, the applicant meets cl.187.233(6).

18. Therefore, overall cl.187.233 is met.

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

    DECISION

20. 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 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    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.