Byrne (Migration)

[2023] AATA 207

Byrne (Migration) [2023] AATA 207 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Adrian Byrne
Mrs Kellie Ann McCarthy

CASE NUMBER:  1920686

HOME AFFAIRS REFERENCE(S):          BCC2018/966595

MEMBER:Dr Susan Hoffman

DATE:2 February 2023

PLACE OF DECISION:  Perth

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 Regulations

Statement made on 02 February 2023 at 2:24pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – painter – subject of approved position nomination – refusal of related nomination application set aside on review – adverse information – criminal convictions, fines and probations more than 10 years ago – reasonable to disregard – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233(1)(b)

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 28 February 2018. 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 a senior painter. The relevant ANZSCO code is 332211.

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 application by his employer, Regional Maintenance Pty Ltd, was not successful.

6. The applicants were not invited to appear before the Tribunal as it was able to make a decision favourable to them on the papers.

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 concerns the nomination of the position relevant to this review.

   Nomination of a position

9. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

11. The Tribunal is satisfied that the position to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream located in Tamworth, which is in regional Australia.

12. The Tribunal is satisfied, having reviewed his application form, that the applicant declared in it that the nominated occupation - a painting trades worker - is a position nominated under regulation 5.19 (as required by s.187.233(1)(b)).

13. The Tribunal is satisfied, having reviewed the nomination application form, that it identified this applicant in relation to the position.

14. The Tribunal has also satisfied itself that Mr Brett Edwards, who is the owner of Regional Maintenance Pty Ltd and who made the nomination, is the person who will employ the applicant.

15. The Tribunal reviewed the departmental decision to refuse the nomination and has set aside that decision, substituting it with a decision approving the nomination. There was no evidence before the Tribunal of the nomination being subsequently withdrawn.

16. With regard to adverse information, in his visa application form the applicant,w ho arrived in Australia in February 2008, recorded that he had been convicted of offences, as follows:

    2006      fine – unlawful possession of drugs

    2007      fine – unlawful possession of drugs

    No date   probation order - unlawful possession of drugs

    2012  fine – driving without consideration

    2013  probation order – drug possession

17. There was no evidence before the Tribunal of the applicant committing further offences. He provided a Police Certificate dated 19 July 2018 which stated that the applicant was not convicted of any crime while residing in Ireland, his country of nationality. The Tribunal notes that according to Irish law, a range of minor offences become spent after seven years.[1]

    [1] Citizens Information (2022) Spent convictions, accessed 2 February 2023 at >

    Given the nature of the offences and the time that has elapsed since the most recent – about 10 years – the Tribunal is satisfied it is reasonable to disregard the information.

18. Mr Edwards submitted evidence to the Tribunal in September 2022 in support of his application for review of the decision made by the delegate to refuse the nomination application. There was no evidence before the Tribunal that he wanted to withdrew the nomination. The Tribunal is satisfied therefore that the position is still available to the applicant. 

19. The visa application was made on 28 February 2018 which was not more than six months after the nomination of the position was approved.

20. Therefore, cl 187.233 is met.

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

22. Also, given the Tribunal’s finding with regard to the primary applicant, the applications made by the secondary applicant should be reconsidered.

    DECISION

23. 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 Regulations

    Susan Hoffman
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.