Yim (Migration)

[2023] AATA 897

Yim (Migration) [2023] AATA 897 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ming Chak Yim

REPRESENTATIVE:  Mr Joseph Yao (MARN: 0743862)

CASE NUMBER:  1923349

HOME AFFAIRS REFERENCE(S):          BCC2018/778447

MEMBER:Warren Stooke AM

DATE:31 March 2023

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 of Schedule 2 to the Regulations; and

·cl 187. 233 of Schedule 2 to the Regulations.

Statement made on 31 March 2023 at 12:24pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Pastry Cook – subject of ­an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 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 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 16 February 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 Pastry Cook – ANZSCO Code: 351112.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl 187. 233 of Schedule 2 to the Regulations because the position of Pastry Cook with the nominating employer was not approved.

6. The applicant appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Durie, an owner and manager of Bakery on Broadway Pty Ltd, the nominating sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Other and English languages.

7. The applicant was represented in relation to the review.

8. The applicant advised the Tribunal that he had received a copy of the delegate’s decision, which was provided to the Tribunal with the application for review. The applicant stated that he understood that the reason for the refusal of his 187 visa was because the business could not hire another person on a full-time basis.

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 first named applicant (the applicant), who is seeking the visa in the Direct Entry stream to work in the nominated position Pastry Cook – ANZSCO Code: 351112 for Bakery on Broadway Pty Ltd Pty Ltd, has an approved nomination for the position.

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an 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.

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 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.

13. The applicant was granted a Bridging Visa A on 16 February 2018 that subsequently expired when he returned to his home country during Covid.

14. The applicant confirmed that he had undertaken a PTE English language test on 4 October 2017 with a score of 57.

15. The applicant confirmed that prior to returning to Hong Kong he worked on the night shift with the bakery and that there was a need for more than one person.

16. The applicant stated that since he has been waiting for three and a half years, he has been working in the catering industry in Hong Kong.

17. The applicant provided evidence of an AFP police check dated 5 February 2018, which advised: ‘no disclosable court outcomes’.

18. The applicant provided evidence of completion of a Certificate III in Patisserie that was undertaken from 13 July 2015 to 3 July 2016; a Certificate IV in Patisserie, that was issued on 18 December 2016; and a Diploma of Hospitality Management that was issued on 9 July 2017.

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. 223 of Schedule 2 to the Regulations; and

    ·cl 187 233 of Schedule 2 to the Regulations.

    Warren Stooke AM
    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.