Bogaerdt (Migration)

[2020] AATA 3863

Bogaerdt (Migration) [2020] AATA 3863 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Morgane Bogaerdt
Mr Michael Jacques Nathan Armand De Cesco
Master Amaury Nilio De Cesco
Master Ezio De Cesco

CASE NUMBER:  1809409

HOME AFFAIRS REFERENCE(S):          BCC2016/3641475

MEMBER:De-Anne Kelly

DATE:13 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application 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 Migration Regulations.

Statement made on 13 July 2020 at 3:25pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Salon Manager – Pet Grooming – nomination approved upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.233, 187.311

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 (the Act).

2. The applicants applied for the visas on 1 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 (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 Direct Entry stream, to work in the nominated position of Salon Manager – Pet Grooming.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on the 15 February 2018 the nomination application lodged by Fairy Tail Pty Ltd being the application referred to in cl.187.233(1) was refused.

6. The applicant appeared before the Tribunal on 9 July 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.  

7. The applicant was represented in relation to the review by its registered migration agent, Ms Sharon Harris MARN: 9510160 of Surfers Paradise, Queensland Australia. 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 1 November 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 Thomas Dirckx the owner and director of Fairy Tail Pty Ltd 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 Salon Manager – Pet Grooming on a salary of $49,400 per annum which has now risen to $67,000 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 Thomas Dirckx the owner and director of Fairy Tail Pty Ltd.

15. There is no information before the Tribunal constituting adverse information regarding Mr Thomas Dirckx the owner and director of Fairy Tail Pty Ltd.

16. The most recent employment contract dated 20 March 2020 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 1 November 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.

19. The secondary visa applicants Mr Michael Jacques Nathan Armand De Cesco, Master Amaury Nilio De Cesco and Master Ezio De Cesco had their visa applications refused by a delegate of the Minister on the basis that cl.187.311 of Schedule 2 to the Regulations was not satisfied. This clause provides that:

    187.311

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

20. Because the primary visa applicant’s Subclass 187 visa application was refused, the secondary visa applicants were members of the family unit of a person who did not hold a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

21. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicants’ visa applications to the Minister.

    DECISION

22. The Tribunal remits the applications 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.

    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.