Camlian (Migration)

[2021] AATA 259

Camlian (Migration) [2021] AATA 259 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Noela Michelle Berces Camlian
Mr Rommel Masla Camlian
Miss Jamilla Maicah Berces Camlian

CASE NUMBER:  1803784

HOME AFFAIRS REFERENCE(S):          BCC2016/4040115

MEMBER:K. Chapman

DATE:5 February 2021

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 Regulations.

Statement made on 05 February 2021 at 4:09pm

CATCHWORDS

MIGRATION – Regional Sponsored Migration Scheme (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), r 5.19(4), 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 first named applicant applied for the visa on 30 November 2016, including the second and third named applicants in the application. 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 (hereafter ‘the applicant’) is seeking the visa in Direct Entry stream, to work in the nominated occupation of Retail Manager (General) (ANZSCO Code 142111). That position was nominated by Collins Restaurants West Pty Ltd (‘the nominator’), the applicant’s employer.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to her. The delegate found that the nomination made by the nominator had been refused.

6. Additionally, the second and third named applicants were refused the visas given they were not a member of the family unit of a person who met the primary visa criteria and there was no evidence that they met the primary visa criteria in their own right. On 13 February 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application for review.

7. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 satisfies cl.187.233.

   Nomination of a position

10. Clause 187.233, as applicable in this case, is set out in full in the 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. Further, 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. On 23 January 2021, the Tribunal set aside the Department's decision concerning the application for nomination and substituted a decision to approve the nomination in respect of the nominator under r.5.19(4) (see AAT matter 1800585). The evidence before the Tribunal indicates that the original nominator will still employ the applicant in the position in Regional Australia and will proceed with the nomination, in addition to the visa application having been made within the requisite time frame. Further, there is no evidence of adverse information in relation to the nominator.

13. Therefore, cl.187.233 is satisfied by the applicant. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

14. The Tribunal finds that as the second and third named applicants applied for the visas on the basis of being a member of the family unit of the applicant, their application will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.

    DECISION

15. 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.

    K. Chapman
    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.