YAU (Migration)

[2018] AATA 2839

YAU (Migration) [2018] AATA 2839 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SIU NAM YAU

CASE NUMBER:  1615557

DIBP REFERENCE(S):  BCC2015/3681252

MEMBER:Alan McMurran

DATE:29 June 2018

PLACE OF DECISION:  Sydney

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 29 June 2018 at 10:08am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Open Water Diving Instructor – Subject of approved nomination – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65, 338(2), 347

Migration Regulations 1994, Schedule 2, rr 5.19(4), 1.13A, 1.13B, cl 187.233

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 4 December 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Open Water Diving Instructor (ANZSCO 452311). 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 of Schedule 2 to the Regulations because on 2 August 2016, the nomination in support of the position was refused by a delegate of the Department.

6. The applicant was represented in relation to the review by his registered migration agent.

7. The Tribunal finds that the delegate’s decision is an MRT reviewable decision under subsection 338 (2) and that the applicant has made a valid application for review under section 347 of the Act.

8. The Tribunal has before it the Departmental file[1] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and the information available to it in related Tribunal file 1613116.

   [1] BCC 2015/3681252

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl. 187. 233(3). Specifically, for applicants in the direct entry stream, cl. 187.233(3) requires that the Minister has approved the nomination.

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19 (4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19 (4)(a)(ii).

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

13. Having regard to the information contained in the Department’s file BCC2015/3681252, and in the related Tribunal file 1613116, the Tribunal finds that the person who will employ the applicant is Juliet Holdings proprietary Ltd ATF The Beau Discretionary Trust, being the applicant’s nominator in the application and as evidenced by the applicant’s employment contract supplied with the applicant’s information[2] in support of the application.

    [2] D file f 126-129

14. On 21 June 2018, the Tribunal on review approved the nomination by Juliet Holdings proprietary Ltd ATF The Beau Discretionary Trust, nominating the applicant, Siu Nam Yau, for the occupation of Open Water Diving Instructor. The Tribunal finds that the nomination has been approved and has not been subsequently withdrawn.

15. The Tribunal is satisfied it is not aware on the information before it of any adverse information known to immigration about the nominator, Juliet Holdings proprietary Ltd ATF The Beau Discretionary Trust. Regulation 1.13A and B include information as to any criminal offending as found by a court in respect of a law of a State, Commonwealth or Territory, any administrative action or investigation undertaken, or any act of insolvency, within the previous 3 years.

16. The Tribunal is satisfied it is not aware of any information to the effect that the position nominated of diving instructor to be employed by the nominator is no longer available to the applicant. The Tribunal finds that the nominator has supported its application and the application by the nominee and at the hearing before the Tribunal in Case number 1613116 heard on 21 June 2018, and that the position is still available to the applicant.

17. The Tribunal finds that the review applicant has made the application no more than 6 months after the nomination of the position was approved.

18. The Tribunal finds that the review applicant is the subject of an approved nomination as set out above and in accordance with cl. 187.233(3) of the Regulations.

19. Therefore, cl.187.233 is met.

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

    DECISION

21. 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;

    Alan McMurran
    Member