1511379 (Migration)

[2016] AATA 4811

1511379 (Migration) [2016] AATA 4811 (13 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joris van der Heijden

CASE NUMBER:  1511379

DIBP REFERENCE(S):  BCC2014/3433710

MEMBER:Jennifer Ciantar

DATE:13 December 2016

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 13 December 2016 at 3:28pm

CATCHWORDS
Migration - Regional Employer Nomination (Permanent) (Class RN) visa - Subclass 187 (Regional Sponsored Migration Scheme) - Tribunal set aside decision to refuse the nomination – Now approved nomination exists for the position

LEGISLATION
Migration Act 1958, r.5.19(4)(h)(ii), r.5.19(4), r.1.13A, r.1.13B, cl.187.223
Schedule 2, Migration Regulations 1994

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 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 to the Department of Immigration for the visa on 15 December 2014. 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 Flying Instructor ANZSCO 231113. 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 the nomination lodged by Narrabri Aviation had been refused on 18 June 2015.

6. The applicant appeared before the Tribunal on 16 November 2016 to give evidence and present arguments. The hearing was combined with that of Narrabri Aviation (MRD 1509005). The applicant confirmed that the only issue is whether there is an approved nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. 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.

10. On 13 December 2016 the Tribunal set aside the decision to refuse the nomination lodged by Narrabri Aviation and substituted a decision to approve the nomination. The Tribunal is satisfied that the person who will employ the applicant, Narrabri Aviation, is the person who made nomination and that the position is still available to the applicant. The Tribunal is also satisfied that the visa application was made no more than six months after the nomination of the position was approved. There is no evidence that there is any ‘adverse information’ known to Immigration about Narrabri Aviation or an associated person.

11. Therefore, cl.187.233 is met.

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

    DECISION

13. 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.

    Jennifer Ciantar
    Member