Culion (Migration)

[2018] AATA 3895

Culion (Migration) [2018] AATA 3895 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Perla Culion
Mr Emmanuel Culion
Master E-thann Kein Culion

CASE NUMBER:  1609088

HOME AFFAIRS REFERENCE(S):           BCC2015/473338

MEMBER:Wan Shum

DATE:14 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application 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.187.223 of Schedule 2 to the Regulations.

Statement made on 14 September 2018 at 2:22pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – nominated position of Café Manager – employee approved as a standard business sponsor – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19 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) Subclass 187 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 187 (Regional Sponsored Migration Scheme) visas on 12 February 2015.

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 is seeking the visa under the Temporary Residence Transition stream, to work in the nominated position of Café Manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation. The employer in this case is 2 Fresh Pty Ltd ATF Café 21 Trust. The employer applied for approval for a position on 10 February 2015. That application was not approved.

5. The delegate refused to grant the visas because the first named applicant did not meet 187.223 of Schedule 2 to the Regulations because the nomination had not been approved.

6. The employer sought review of that decision and was represented in relation to the review by a registered migration agent. The applicants also sought review in relation to the visa refusal decision.

7. The Tribunal hearing was held on 11 July 2018 and the applicants appeared by video conference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brian Barnes, one of the Directors of the employer, in relation to the review of the refusal to approve the nomination of the position. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination in respect of the first named applicant (the applicant).

10. Clause 187.223 essentially requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19)

    ·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.

12. On 14 September 2018, the Tribunal approved the related nomination. There is ‘adverse information’ known to Immigration about the person who made the nomination, being the employer, who was sanctioned for 6 months on 8 March 2016. The bar has since ceased, and the employer has been approved as a standard business sponsor for 5 years from April 2017. The employer has also subsequently been approved for the nomination of five other former Subclass 457 visa holders under the Regional Sponsored Migration Scheme. The Tribunal considers in the circumstances that it is reasonable to disregard the information. The position is located in Darwin, which is regional Australia as defined in r.5.19.

13. On the information before the Tribunal, it finds that the position is still available to the applicant and, as the visa application was made prior to the approval of the nomination, all of the requirements of cl.187.223 have been met.

14. Given these findings, the appropriate course is to remit the visa application 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.187.223 of Schedule 2 to the Regulations.

    Wan Shum
    Member