Cavallaro (Migration)

[2020] AATA 520

Cavallaro (Migration) [2020] AATA 520 (21 January 2020)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simone Cavallaro

CASE NUMBER:  1908062

DIBP REFERENCE(S):  BCC2017/3173717

MEMBER:Andrew George

DATE OF DECISION:  21 January 2020

DATE CORRIGENDUM

SIGNED:11 March 2020

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

The date on the cover page of the decision currently reads as “Statement made on 21 December 2020 at 12:06pm" and should be replaced with "Statement made on 21 January 2020 at 12:06pm".

Andrew George
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simone Cavallaro

CASE NUMBER:  1908062

HOME AFFAIRS REFERENCE(S):          BCC2017/3173717

MEMBER:Andrew George

DATE:21 January 2020

PLACE OF DECISION:  Darwin

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.187.212 of Schedule 2 to the Regulations;

·cl.187.212A of Schedule 2 to the Regulations;

·cl.187.231 of Schedule 2 to the Regulations;

·cl.187.232 of Schedule 2 to the Regulations;

·cl.187.233 of Schedule 2 to the Regulations; and

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 21 December 2020 at 12:06pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café and Restaurant Manager – nomination refused – employment to be provided – age requirements met – English language skills competent – decision substituted – nomination approved – criminal charge – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 245
Migration Regulations 1994(Cth), rr 1.13, 5.19, Schedule 2, cls 187.212, 187.231, 187.233, 187.234

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 (the Act).

2. The applicant applied for the visa on 1 September 2017. 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 (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 Direct Entry stream, to work in the nominated position of a Café and Restaurant Manager – 141111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the relevant nomination was refused.

6. The applicant was represented in relation to the review by his registered migration agent, Mr Brian Kelleher of Ward Keller Lawyers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Licensing, registration and membership requirements

8. Clause 187.211 applies to all primary applicants if it is mandatory in the State or Territory where the nominated position is located to hold a licence, registration or membership of a professional body to undertake the tasks of a kind to be performed in the occupation to which the position relates. In these cases, the applicant must hold, or be eligible to hold such a licence, registration or membership at the time of the visa application.

9. There is no evidence before the Tribunal that the position of Café or Restaurant Manager – 141111 requires licensing, registration, or membership in the Northern Territory. Therefore, cl.187.211 is not applicable.

   Employment will be provided

10. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application. The Tribunal notes its decision in case number 1904247 of today’s date. For the reasons contained in that decision the Tribunal is satisfied that the employment referred to in the r5.19 nomination application will be provided. Therefore, cl.187.212 is met.

    Whether the applicant has engaged in conduct in contravention of the Act

11. An applicant meets cl.187.212A(a) if they have not, in the previous 3 years, engaged in conduct that constitutes a contravention of ss.245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act. In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or providing a benefit, in return for the occurrence of a sponsorship-related event. The meanings of ‘benefit’ and ‘sponsorship-related event’ in this context are provided under s.245AQ of the Act. There is no evidence before the Tribunal to indicate that the applicant has engaged in such conduct. Therefore, cl.187.212A is met.

    Age requirements

12. At the time the visa application is made, an applicant in the Direct Entry stream must either meet certain age requirements, or must be in a class of persons specified in a relevant legislative instrument: cl.187.231. In this case, as the visa application was made on or after 1 July 2017, the applicant must not have turned 45 at the time of application. In the present case the applicant was born on 14 June 1985 and therefore, cl.187.231 is met.

    English language proficiency

13. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in the relevant legislative instrument: cl.187.232.

14. ‘Competent English’ is defined in r.1.15C of the Regulations. The applicant will have competent English if he undertook a specified language test in the three years preceding the visa application and achieved a specified score. One such specified test is the International English Language Testing System (IELTS), where the required score is a Test Result of 6.0 in all four components.

15. The Tribunal has before it an IELTS Test Report Form dated 23 September 2016, which is within three years of the date of application. The Test Results are Listening 6.0, Reading 6.5, Writing 6.0, and Speaking 7.5. Therefore, cl.187.232 is met.

    Nomination of a position

16. 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, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

17. 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.

18. The Tribunal notes its decision in case number 1904247 of today’s date. The Tribunal notes that decision set aside the decision under review and substituted a decision approving the nomination. The Tribunal relies upon the reasons in that decision in this matter.

19. The Tribunal notes that Mr Cavallaro has no criminal record or pending charges in Italy. The Tribunal notes that Mr Cavallaro has a United States Department of Justice, Federal Bureau of Investigations (FBI), search dated 12 July 2016 indicating no prior arrest data.

20. The contents of an Australian Federal Police National Police Certificate dated 4 November 2016 are of concern to the Tribunal. Mr Cavallaro was fined $200 without conviction on 12 July 2016 in the Brisbane Magistrates Court for Unauthorised Dealing With Shop Goods contrary to s.5(1)(b) of the Regulatory Offences Act 1995 (Qld). This is clearly ‘adverse information’ within the meaning of r1.13A(2)(a) and it was presumably for these proceedings that the FBI search was required.

21. In the absence of any submissions by the applicant, the Tribunal has reviewed s.5(1)(b) of the Regulatory Offences Act 1995 (Qld). From this offence, the Tribunal has concluded that Mr Cavallaro somehow interfered with a price or barcode shown on an item up to the value of $150. This is a dishonesty offence. As there is no evidence before the Tribunal of any remorse by the applicant, or an early plea of guilty, the Tribunal cannot take such considerations into account.

22. It is material that the Brisbane Magistrates Court saw fit to impose a minor pecuniary penalty without conviction. Respecting this decision, the Tribunal sees fit to disregard this ‘adverse information’. Therefore, cl.187.233 is met. However, and in passing, the Tribunal would unlikely have disregarded a conviction in the absence of any other explanatory material.

    Skills and qualifications

23. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

24. At the time of application, Mr Cavallaro was not an exempt person. The Tribunal therefore turns to the ANZSCO to assess if the applicant had the qualifications in ANZSCO to perform the occupation of Café or Restaurant Manager – 141111. These are an Associate Degree, Advanced Diploma, or Diploma (ANZSCO Skill Level 2). The Tribunal notes that Mr Cavallaro has a Diploma of Hospitality from All Australian Training Pty Ltd dated 29 September 2016. The Tribunal also notes a Positive Skills Assessment Outcome from VETASSESS dated 1 November 2019. Therefore, cl.187.234 is met.

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

    DECISION

26. 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.187.212 of Schedule 2 to the Regulations;

    ·cl.187.212A of Schedule 2 to the Regulations;

    ·cl.187.231 of Schedule 2 to the Regulations;

    ·cl.187.232 of Schedule 2 to the Regulations; and

    ·cl.187.233 of Schedule 2 to the Regulations; and

    ·cl.187.234 of Schedule 2 to the Regulations.

    Andrew George
    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.