1512124 (Migration)

[2015] AATA 3582

1512124 (Migration) [2015] AATA 3582 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fabian Bucher

CASE NUMBER:  1512124

DIBP REFERENCE(S):  BCC2015/605748

MEMBER:Steve Georgiadis

DATE:29 October 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 29 October 2015 at 6:47pm

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 24 February 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 Café or Restaurant Manager (ANZSCO 141111). 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 appointment nomination to which the visa application relates had not been approved (cl.187.233(3)).

6. The applicant appeared before the Tribunal on 21 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ben Maher, Director Wandering Star Investments Pty Ltd.

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

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicant meets the criteria for grant of the (Class RN) visa.

   Nomination of a position

10. 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.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant was the nominator in the application for approval;

    ·the nomination has been approved and has not been subsequently withdrawn;

    ·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 has examined the visa application on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor, being that of Café or Restaurant Manager (ANZSCO 141111) (cl.187.233(1)).

13. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Wandering Star Investments Pty Ltd. Thus the applicant meets cl.187.233(2). The oral evidence before the Tribunal from the applicant and the nominator employer is that the position has not been subsequently withdrawn and is still available to the applicant (cl.187.233(4) and cl.187.233(5)). 

14. On 29 October 2015 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related case-file number 1510759 for the reasons set out in the Decision Record for that case refusing the nomination.

15. The Tribunal put to the applicant at the hearing that without an approved appointment, he would not meet essential criteria to satisfy cl.187.233 for the grant of the visa and that the application would, on that basis, be unsuccessful. The applicant confirmed to the Tribunal that he understands and accepts that, in such circumstances, it would not be open for the visa application to be successful as this is one of the required criteria (cl.187.233(3)).

16. Having considered the available evidence before it, the Tribunal is satisfied that the position of Café or Restaurant Manager (ANZSCO 141111) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.  

17. As cl.187.233(3) is not satisfied, cl.187.233 is therefore not met overall.

18. 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

19. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Steve Georgiadis
    Member