CORTES SALDARRIAGA (Migration)

[2019] AATA 1163

CORTES SALDARRIAGA (Migration) [2019] AATA 1163 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pablo Cesar Cortes Saldarriaga
Ms Andrea Cristina Rendon Lopez

CASE NUMBER:  1724891

HOME AFFAIRS REFERENCE(S):           BCC2017/2175758

MEMBER:C. Packer

DATE:5 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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 April 2019 at 10:42am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Marketing Specialist – subject of an approved nomination – nomination application approved by Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 June 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Marketing Specialist [ANZSCO 225113].

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination by Aussie Learning Pty Ltd had been refused on 9 August 2017.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 187.233 as applicable in this case and 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.

9. 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

10. On 4 April 2019 the Tribunal found the nominator, Aussie Learning Pty Ltd, meets the requirements of r.5.19 for approval of the nomination of the position in Australia. The Tribunal set aside the delegate’s decision to refuse the nomination application under review and substituted a decision approving the nomination.

11. Based on the material before the Tribunal, the Tribunal is satisfied Aussie Learning Pty Ltd which is the entity that made the nomination, will employ the applicant. Based on the material before the Tribunal including information from the Department, 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). The Tribunal is also satisfied the applicant is currently employed in the position and so the position is still available to the applicant, and the visa application was made on 20 June 2017 which was the same date the nominator applied for approval of the nomination of a position in Australia under r.5.19.

12. Therefore, cl.187.233 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

13. The Tribunal remits the applications 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

    C. Packer
    Member