Becerra Hermosilla (Migration)

[2019] AATA 3181

Becerra Hermosilla (Migration) [2019] AATA 3181 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Mackarena Nataly Becerra Hermosilla
Mr Donovan Alejandro Rodriguez Flores

CASE NUMBER:  1803279

DIBP REFERENCE(S):  BCC2017/2596812

MEMBER:Andrew McLean Williams

DATE:23 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 187 visa:

·cl.187.233(2) of Schedule 2 to the Regulations

Statement made on 23 July 2019 at 4:40pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Interior Decorator – subject of an approved nomination – nomination application now approved by Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Immigration to refuse to grant the applicants Regional Employer Nomination (Permanent) (‘class RN’) visas, under s.65 of the Migration Act 1958 (the Act). The applicants had applied for the visas on 21 July 2017. The delegate refused to grant the visas on 24 January 2018.

2. At the time of the application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 of 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 to satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘common criteria’, as well as criteria of one of the two alternative visa streams: the temporary Residence Transition stream or the Direct Entry stream.

3. In the present case, the first-named applicant Ms Mackarena Nataly Becerra Hermosilla (the primary applicant) is seeking a visa in the Direct Entry stream, to work in the nominated position of Interior Decorator (ANZSCO Category 399912) employed by the House of Drapes Pty Ltd.

4. The delegate made the decision on 24 January 2018 refusing the applicants a class RN visa on the basis that, on 12 December 2017, the nomination application lodged by House of Drapes Pty Ltd - being the nomination referred to in paragraph 187.233(1) in Schedule 2 the Regulations – had been refused by a delegate of the Minister for Home Affairs, meaning that the first-named applicant could not meet the requirements of clause 187.233(2) in Schedule 2 of the Regulations.

5. On 23 July 2019 the Tribunal determined that in light of additional evidence lodged before the Tribunal by the House of Drapes Pty Ltd, the nomination application hould be approved. In light of this the requirements of clause 187.233(2) in Schedule 2 of the Regulations are now able to be met by the first-named applicant such that it is now appropriate that the matter should be remitted to the Department for reconsideration.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 187 visa:

   ·cl.187.233(2) of Schedule 2 to the Regulations

   Andrew McLean Williams
   Member