Bianchini (Migration)

[2021] AATA 3138

Bianchini (Migration) [2021] AATA 3138 (19 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paolo Bianchini
Ms Chia-ling Hsu

CASE NUMBER:  1822176

HOME AFFAIRS REFERENCE(S):          BCC2016/3651968

MEMBER:Mark O'Loughlin

DATE:19 July 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named 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 19 July 2021 at 3:40pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Office Manager – tribunal set aside nomination application – approved nomination – position is still available to the applicant –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 November 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 (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination of the position to which his application relates had not been approved by the Minister as required by subclause (3).

6. The applicants appeared before the Tribunal on 26 May 2021 to give evidence and present arguments.

7. The hearing was combined with a hearing in relation to the application for approval of the nomination of the position (“the related hearing”) and the Tribunal heard evidence from Mr. Rene Stapel, the director of the firstnamed applicant’s employer, which it treats as evidence in both matters.

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 nomination of the position to which this application relates has been approved.

   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 reg 1.13A and reg 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. Having regard to all of the evidence before it including the testimony of Mr. Stapel and of the applicant.

13. The Tribunal is satisfied that the person who made the application, Pure and Healthy Pty Ltd,  is the person who will employ the applicant.

14. The Tribunal has, by decision of 19 July 2021, substituted a decision approving the nomination for the decision refusing to approve it.

15. There is no evidence before the Tribunal of  relevant “adverse information” about the person who made the nomination or a person associated with that person.

16. The Tribunal is satisfied that the position is still available to the applicant.

17. The visa application was made no more than 6 months after the nomination of the position was approved.  Indeed the application was made before the nomination of the position was approved.

18. Therefore, cl 187.233 is met.

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

    DECISION

20. The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations;

    Mark O'Loughlin
    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.