Berstermann (Migration)

[2020] AATA 1612

Berstermann (Migration) [2020] AATA 1612 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kerstin Berstermann

CASE NUMBER:  1804913

HOME AFFAIRS REFERENCE(S):          BCC2016/3025640

MEMBER:De-Anne Kelly

DATE:12 May 2020

PLACE OF DECISION:  Brisbane

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 12 May 2020 at 6:52am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Retail Manager – subject of ­an approved nomination – 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 Home Affairs 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 for the visa on 12 September 2016. 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 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 Direct Entry stream, to work in the nominated position of Retail Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) and cl.187.233 of Schedule 2 to the Regulations because on the 14 December 2017 the nomination application lodged by N Noack & S Noack being the application referred to in cl.187.233(1) was refused.

6. The applicant appeared before the Tribunal on 17 March 2020 to give evidence and present arguments.  This was a dual hearing of the employer nomination refusal review and the visa application refusal review. The Tribunal also received oral evidence from Ms Amy Lalonde, the Business manager.

7. The applicant was represented in relation to the review by its registered migration agent, Ms Sonja Reusche - MARN: 1463010 of Sunshine Coast Migration. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a 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.

11. 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.

12. The visa application was acknowledged by the Department of Immigration and Border Protection on 12 September 2016 and is consistent with the declaration in cl.1114B(3)(d) of Schedule 1 to the Regulations being made in the application for the grant of the visa.

13. Mr Sven Noack, the owner and partner in S Noack & N Noack made the nomination and signed the Employment Contract demonstrating that he is the person who will employ the applicant and is the person who made the nomination. The application made was for the approval of the position of Retail Manager on a salary of $54,000 per annum.

14. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. The Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. The nomination has therefore been approved and has not been withdrawn by Mr Sven Noack, the owner and partner in S Noack & N Noack.

15. There is no information before the Tribunal constituting adverse information regarding Mr Sven Noack, the owner and partner in S Noack & N Noack.

16. The most recent employment contract dated 1 August 2019 and signed by both the nominator and the applicant demonstrate that the position is still available to the applicant. The visa application was made on 12 September 2016 and therefore was made no more than six months after the nomination of the position was approved.

17. Therefore, cl.187.233 is met.

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

    DECISION

19. 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.

    De-Anne Kelly
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (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.