Cercleron (Migration)

[2023] AATA 3644

Cercleron (Migration) [2023] AATA 3644 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Camille Nathalie Laurence Cercleron

REPRESENTATIVE:  Mrs Iris Sabine Indorato (MARN: 0636411)

CASE NUMBER:  1936598

HOME AFFAIRS REFERENCE(S):          BCC2019/4872084

MEMBER:Terrence Baxter

DATE:25 October 2023

PLACE OF DECISION:  Brisbane

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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 25 October 2023 at 1:44pm

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, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 28 September 2019. 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 for the Trustee for Devic Trust (the nominator).

5. The delegate refused to grant the visa on 13 December 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required that she be the subject of an approved nomination. The delegate found that the nomination of the nominator was refused on 12 November 2019 and that accordingly the applicant did not meet the requirements of cl 187.233(3) and did not meet the requirements of cl 187.233 as a whole.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 30 December 2019.

7. The applicant appeared before the Tribunal by video conference on 5 September 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the related nomination application.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicant was represented in relation to the review by her registered migration agent, Ms Iris Indorato of Cairns. The representative attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. 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.

13. 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.

14. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Café or Restaurant Manager approved, with the applicant as nominee, on 27 September 2019. The nomination application was refused on 12 November 2019 and the nominator sought review of that decision with the Tribunal on 28 November 2019.

15. On 25 October 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

16. Therefore, cl 187.233(3) is met.

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

    DECISION

18. 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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.