1928315 (Migration)

[2023] AATA 2381

1928315 (Migration) [2023] AATA 2381 (2 February 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Ms Sharon Harris (MARN: 9501060)

CASE NUMBER:  1928315

MEMBER:  Peter Newton

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 February 2023 at 3:25 pm (NSW time)

DATE OF WRITTEN RECORD:                3 March 2023 PLACE OF DECISION:   Sydney

DECISION:The Tribunal affirms the decisions under review and refers the case to the Department of Home Affairs for consideration of intervening pursuant to the public interest powers conferred by section 351 of the Migration Act 1958 (Cth).

Statement made on 3 March 2023 at 12:53am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – related position nomination refused – joint hearing of nomination and visa reviews – nomination refusal affirmed – unique or exceptional circumstances not anticipated by legislation – business sold between application for review and hearing, with nominee continuing in position under new owners – if not for sale, nomination would have been approved – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 351
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 19 September 2019 (Department’s Decision) refusing to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (Cth) (Act).

1. At the hearing on 2 February 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The criteria for subclass 187 visa are set out in part 187 of schedule 2 to the Migration Regulations 1994 (Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, who are applicants for the visa, need only satisfy 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 residents transitions stream or the direct entry stream.

1. In the present case the first named applicant (applicant) is seeking a visa in the direct entry stream, to work in the nominated position of retail manager in the business known as [the Business]. The business comprises a bakery, café, bar and restaurant. The delegate refused to grant the visas because there was not an approved nomination at the time of the decision. The nomination was by the then employer, [Company 1]. That nomination was lodged on 9 January 2018. On 24 July 2019 the Department delivered its decision refusing the nomination. The applicants ([the first applicant] and [the second applicant]) appeared at the hearing before the Tribunal on 2 February 2022. The third applicant is [the first applicant’s] and [the second applicant’s] [Age]-year-old son.

1. The application was heard concurrently with the application by [Company 1] for the review of the Department’s decision refusing its nomination of the applicant in the position of retail manager. Evidence in one application was evidence in the other.

1. At the hearing, the applicants were represented by Ms Harris. Evidence was given by the applicants, [Mr A], the director of the nominating employer, [Mr and Ms B] who are directors of the company that purchased the business previously operated by [Company 1], [Ms C] and [Ms D] who live and work in the community where the business is located.

1. Prior to delivering this decision and reasons I delivered a decision on the application for review by the nominating employer, [Company 1], on its application for review of the Department’s decision refusing to approve the nominated under regulation 5.19 of the Regulations. On that application, for the reasons given in the determination that I just delivered, I affirmed the decision under review and due to unique and exceptional circumstances I considered, I referred the case to the Department of Home Affairs for consideration of intervention pursuant to the public interest powers conferred by section 351 of the Act.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. For the reasons set out in the related decision on the application for review by [Company 1], case number 1922515, Home Affairs [Reference], the Tribunal refers the case to the Department of Home Affairs for consideration of intervening pursuant to the public interest powers conferred by section 351 of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether there is an approved nomination.

1. Clause 187.233 as applicable in this case requires that the position to which the application relates be the subject of an application for approval of the 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.

1. As stated, I have found that the Department’s decision refusing to approve the nomination by [Company 1] should be affirmed however due to the unique or exceptional circumstances referred to in that decision, the Tribunal referred the to the Department of Home Affairs for consideration of intervening.

1. In the Decision on the application for review by [Company 1], I found that if [Company 1] had not sold its business to [Company 2] between the time its application for review was made and the determination of the application, I would have been satisfied that [Company 1] met the requirements of regulation 5.19 for approval of the nomination of position in Australia. But for the sale of the business and change of proprietors of the business, the Tribunal would have set aside the decision under review and substituted a decision approving the nomination. If that had occurred, on this application for review, I would have remitted the applications for the visa to reconsideration.

1. Because there is currently no approval of the nomination, I am compelled to affirm the Department’s decision refusing the applications for the visa. However, having regard to the exceptional circumstances I have considered in the Tribunal’s decision on the application for review by [Company 1], which are applicable to this application by [the first applicant], [the second applicant] and their son [the third applicant], I affirm the Department’s Decision and refer the case to the Department of Home Affairs for consideration of intervening pursuant to the public interest powers conferred by section 351 of the Act.

DECISION

1. The Tribunal affirms the decisions under review and refers the case to the Department of Home Affairs for consideration of intervening pursuant to the public interest powers conferred by section 351 of the Migration Act 1958 (Cth).

Peter Newton SC Member