Conroy (Migration)

[2022] AATA 4030

Conroy (Migration) [2022] AATA 4030 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Claire Conroy

REPRESENTATIVE:  Ms Edwina Marie King (MARN: 1803481)

CASE NUMBER:  1933830

HOME AFFAIRS REFERENCE(S):          BCC2019/2687864

MEMBER:Vanessa Plain

DATE:17 November 2022

PLACE OF DECISION:  Melbourne

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 187.233 of Schedule 2 to the Regulations.

Statement made on 17 November 2022 at 5:25pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – office manager – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal set aside – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, 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 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 23 May 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of office manager.

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 in respect of which the applicant’s application was lodged was refused.

6. The applicant appeared before the Tribunal on 17 November 2022 to give evidence and present arguments. The Tribunal also heard the related nomination review application (AAT case file 1930003). 

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 is whether the applicant meets the requirements of cl 187.233.

   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 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 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. Gyro Australia Pty Ltd applied to the Tribunal for review of a decision not to approve the nomination (AAT case 1930003). On 17 November 2022, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r. 5.19 of the Regulations. Therefore, the applicant satisfies 187.233 of Schedule 2 to the Migration Regulations 1994.

12. Based upon the documentation submitted, the Tribunal finds that Gyro Australia Pty Ltd is the ‘person’ who made the nomination and will employ the applicant, the nomination is current and has not been withdrawn, the position is still available to the applicant and there is no adverse information known to the Tribunal, or in the Department file in respect of the application.

13. Therefore, cl 187.233 is met.

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

    decision

15. The Tribunal remits the applications 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.

    Vanessa Plain
    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.