Catarcione (Migration)

[2020] AATA 1670

Catarcione (Migration) [2020] AATA 1670 (27 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Gustavo Henrique Catarcione

Miss Thami Christina Da Silva Catarcione

CASE NUMBER:  1712606

DIBP REFERENCE(S):  BCC2016/3288438

MEMBER:  Antonio Dronjic

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 February 2020 at 3:10 am (VIC time)

DATE OF WRITTEN RECORD:                20 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions under review.

Statement made on 20 May 2020 at 12:21pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ subject of ­an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 9 June 2017 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (the Act).

2. The delegate refused to grant the visa because the first named applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations. The delegate found that the appointment, to which the visa application relates, has not been approved by the Department.

3. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 14 June 2017 and with the applications enclosed a copy of the primary decision record.

4. By letter dated 9 January 2020, and in accordance with section 359A of the Act, the Tribunal invited the applicants to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decisions under review.

   The particulars of the information are:

   Your visa application was refused by the Department on 9 June 2017 because the

   appointment, to which the visa application relates, has not been approved by the Department.

   The decision not to approve nomination by The Trustee for the Davey Family Trust was made by the Department on 8 May 2017.

   The Trustee for the Davey Family Trust applied for review of this decision at this Tribunal on 27 May 2017. On 16 December 2019, the Tribunal affirmed the primary decision related to the nomination application.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 187 visa. This is because one of the criteria contained within subclass 187, namely clause 187.223(3) requires that the Minister has approved the nomination.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that you do not meet the criteria contained within clause 187.223.

   This information is relevant to the second named review applicant because cl.187.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and they made a combined application with the primary applicant.

   Accordingly, if the first named review applicant is not a holder of a subclass 187 visa, the secondary applicant will not be able to meet cl.187.311.

5. On 21 January 2020, the applicants responded to the Tribunal’s letter stating inter alia that the Tribunal decision related to nomination review failed to consider circumstances related to training benchmark requirements.

6. At the hearing on 27 February 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   Case Number 1712606  Page 2 of 3

STATEMENT OF DECISION AND REASONS

1. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233 lodged by Trustee for Davey Family Trust Ltd on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 187.233(3) at the time of its decision.

2. The first named applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary residence transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary residence transition stream have not been met, the decision under review must be affirmed.

3. The Tribunal must also affirm the decision not to grant the second applicant a subclass 187 visa as she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that the secondary applicant meets the primary visa criteria for this subclass in her own right.

   DECISION

4. The Tribunal affirms the decisions under review.

   Antonio Dronjic
   Member

Case Number 1712606  Page 3 of 3