Browne (Migration)

[2021] AATA 3732

Browne (Migration) [2021] AATA 3732 (14 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Alexander Browne

CASE NUMBER:  1815817

HOME AFFAIRS REFERENCE(S):          BCC2016/3067312

MEMBER:R. Skaros

DATE:14 September 2021

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations.

Statement made on 14 September 2021 at 8:21am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 187.223, 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 (Cth) (the Act).

2. The applicant applied for the visa on 15 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager ANZSCO 141111.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination in relation to the applicant was not approved.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

7. The applicant was represented in relation to the review by his registered migration agent.

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 nomination of a position in relation to the applicant 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, this criterion also requires that the nomination has been approved.

11. In this case the applicant applied for the visa on the basis of a nomination made by Ambergold Holdings Pty Ltd ATF Ambergold Unit Trust for approval of a position in the occupation of Café or Restaurant Manager. The delegate refused the nomination and Ambergold Holdings Pty Ltd ATF Ambergold Unit Trust applied to the Tribunal for review of the decision to refuse the nomination.

12. On 13 September 2021, the Tribunal set aside the Department’s decision to refuse the nomination and made a decision to approve the nomination.

13. As the relevant nomination in respect of the applicant has now been approved, the applicant accordingly meets the requirement in cl 187.233(3).

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

    DECISION

15. 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 187.223(3) of Schedule 2 to the Regulations.

    R. Skaros
    Senior 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.