Alcontin (Migration)

[2020] AATA 5297

Alcontin (Migration) [2020] AATA 5297 (12 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kenneth Belonta Alcontin

CASE NUMBER:  1813933

HOME AFFAIRS REFERENCE(S):          BCC2017/2013951

MEMBER:Susan Reece Jones

DATE:12 December 2020

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(2) of Schedule 2 to the Regulations.

Statement made on 12 December 2020 at 3:04pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – refusal of related position nomination set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 187.223

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 7 June 2017. 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 Temporary Residence Transition stream, to work in the nominated position of Vehicle Painter (ANZSCO: 324311) for  MELARA HOLDINGS PTY LTD (the nominator) which operates a business in Perth, Western Australia known as ‘Boat Spray’.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of the nominee by Melara Holdings did not satisfy r.5.19(4)(d)(i) of the Regulations because the nominator did not demonstrate that the nominee will be employed on a full-time basis in the position for at least 2 years.

6. The applicant appeared before the Tribunal on 30 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sole director, Mr Neil McCleary.

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

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 relevant nomination has been approved as required by cl.187.223.  

    Nomination of a position

11. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

12. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn(cl.187.223(2) and (3));

    ·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(cl.187.223(3A));

    ·the position is still available to the applicant (cl.187.223(4)); and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.187.223(5)).

13. The applicant applied for a visa on the basis of a nomination made by MELARA HOLDINGS PTY LTD. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 8 May 2018. 

14. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 30 November 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination, under r.5.19(4).

15. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.187.223(2).

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

17. As the Tribunal is remitting the application of the visa applicant with a finding that he meets the requirements of clause.187.223(2), the remaining criteria for the applicant should now be reconsidered.

    DECISION

18. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.187.223(2) of Schedule 2 to the Regulations.

    Susan Reece Jones
    Member

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.