Botha (Migration)

[2018] AATA 2852

Botha (Migration) [2018] AATA 2852 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Stefan Botha
Mrs Julia Botha
Miss Vasti Botha

CASE NUMBER:  1720423

DIBP REFERENCE(S):  BCC2017/2028958

MEMBER:Ian Berry

DATE:29 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the primary applicant  meets the following criteria for a subclass 187 (Regional Sponsored Migration Scheme) visa:

●Clause 187.223 of Schedule 2 to the Regulations

Statement made on 29 June 2018 at 10:08am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Temporary Residence Transition stream – Nominated position of Mixed Crop and Livestock Farmer – Tribunal approved nomination – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 5.19, cls187.223, 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 Immigration on 4 September 2017 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (Mr Botha) applied for the visa on 8 June 2017. The criteria for a Subclass 187 visa are set out in part 187 of Schedule 2 to the Migration Regulations 1994 (Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

3. In the present case, Mr Botha is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Mixed Crop and Livestock Farmer (ANZSCO code 121411).  This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past 2 years, and that employer has offered them a permanent position in the same occupation.

4. The delegate refused to grant the visa because Mr Botha did not meet cl.187.223 of Schedule 2 to the Regulations because he did not have an approved nomination.

5. The Mr Botha appeared before the Tribunal on 26 June 2018 to give evidence and present arguments. The Tribunal received oral evidence from Mr Botha.

6. The applicants were represented in relation to the review by their registered migration agent.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Mr Botha meets the requirements of cl.187.223, that is, Mr Botha has an approved nomination. 

9. Clause 187.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (A Temporary Residence Transition Nomination). For those purposes, Mr Botha must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

10. Additionally, the criterion also requires that:

    a.The nomination has been approved and has not been subsequently withdrawn.

    b.The position is located in regional Australia (as defined in r.5.19(7)).

    c.The position is still available to the applicant.

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

11. The delegate found that Mr Botha did not meet cl.187.223 because the nomination by Mr Botha’s proposed employer Fawngrove Pty Ltd as trustee for The Global Graziers Family Trust had been refused on 26 July 2017.

12. The decision to refuse the approval of the nomination was reviewed by this Tribunal after an application for review was lodged by the nominator on 17 August 2017.

13. The Tribunal found that the position to which an application relates to the position of mixed crop and livestock farmer. The Tribunal also found that this was the same position that was the subject of the r.5.19(3) nomination application. The Tribunal is also satisfied that the applicant held a Subclass 457 visa at the time of application and was identified as the Subclass 457 visa holder in the nomination. The Tribunal is satisfied that the position is the same as that in the visa application declaration. The applicant therefore meets the requirements of cl. 187.223(1).

14. The Tribunal approved the nomination lodged by Fawngrove Pty Ltd as trustee for the Global Graziers Family Trust on 28 June 2018.  Mr Botha therefore meets cl.187.223(2).

15. The Tribunal is satisfied that the nomination has not been subsequently withdrawn and is still available to the applicant.  The Tribunal is satisfied that the position to which the application relates is located in regional Australia.

16. The Tribunal also finds that the visa application was made before the Tribunal approved the nomination.  Mr Botha therefore meets subclauses 187.223(3),(4),(5), and(6).

17. All the requirements of clause 187.223 have been met, so it follows the Tribunal finds that the primary applicant meets clause 187.223.

18. The Tribunal is satisfied that the secondary applicants meet the requirements of cl.187.311.

19. Therefore, the Tribunal remits the visa applications to the Minister to consider the remaining criteria for the visa.

DECISION

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

   ● Clause 187.223 of Schedule 2 to the Regulations.

   Ian Berry
   Member