De Vincenzo (Migration)

[2020] AATA 2701

De Vincenzo (Migration) [2020] AATA 2701 (1 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Angelo De Vincenzo
Mrs Linda De Vincenzo
Miss Roberta Mia De Vincenzo
Master Mattao Salvatore De Vincenzo

CASE NUMBER:  1730021

HOME AFFAIRS REFERENCE(S):  BCC2016/2181909

MEMBER:Ian Berry

DATE:1 June 2020

PLACE OF DECISION:  Brisbane

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 01 June 2020 at 2:08pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – refusal set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19(4), 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) visas under s.65 of the Migration Act 1958 (the Act). The applicants  applied for the visas on 27 June 2016. The delegate refused to grant the visas on 20 November 2017.

2. The applicants applied for the visas on 27 June 2016.  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 1 of 2 alternative visa streams: the Temporary Residents Transition stream, or the Direct Entry stream.

4. In this case, the 1^st named applicant Mr Angelo Giuseppe D Vincenzo (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of café or restaurant manager ANZSCO 141111.

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 of a position in relation to the applicant had not been approved.

6. While the applicant did not have a hearing, he was the representative for the applicant at the applicant’s nominator’s hearing held on 22 November 2019.  The applicant gave evidence at that hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the  applicant meets the requirements of cl.187.233.

   Nomination of a position

8. Cl.187.233 is applicable in this case.  Essentially, it requires that to 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.

9. In addition, this criterion also requires that:

   a.The person who will employ the applicant is the person who made the nomination;

   b.The nomination has been approved and has not been subsequently withdrawn.

   c.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.1.1 3B); or it is reasonable to disregard any such information;

   d.The position is still available to the applicant, and

   e.The visa application was made no more than 6 months after the nomination of the position was approved.

10. The nominating employer, Robtao Pty Ltd as trustee for the Devlin Trust (the nominator), applied to the Department of Immigration for approval of a nomination in relation to the position of café or restaurant manager ANZSCO 141111.  That nomination was refused by the Department and consequently the applicant visa application was refused.

11. The nominator, applied to the Tribunal for review of the decision not to approve the nomination (AAT case 1725054).  On 1 June 2020, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

12. Based on the evidence before it, the Tribunal is satisfied that:

    a.The person who will employ the applicant in the nominated position namely the nominator, is the person who made the nomination;

    b.The nominator’s nomination for the position of café or restaurant manager has been approved by the Tribunal and has not been subsequently withdrawn;

    c.Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to immigration about the nominator or a person associated with the nominator;

    d.The nominator advised at the hearing the position is still available to the applicant; and

    e.The visa application was made at the same time as the employer’s  nomination and was therefore not made more than 6 months after the nomination was approved.

13. On the basis of the above, the Tribunal finds that the requirements of cl.187.233 are 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.

15. Mrs Linda De Vincenzo, Master Matteo Salvatori De Vincenzo and Miss Roberto Mia De Vincenzo applied on the basis of being a member of the family unit of the applicant.  The applications by the 2^nd 3^rd and 4^th named applicants respectively, will be determined by reference to the outcome of the applicant’s application on mental to the Department for consideration.

    DECISION

16. The Tribunal remits the application for Regional Employer Nomination (Permanent ) (Class RN) visas for reconsideration, with the direction that the 1^st named applicant meets the following criteria for a Subclass 17 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations

    Ian Berry
    Member