Dennis (Migration)

[2020] AATA 1599

Dennis (Migration) [2020] AATA 1599 (17 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Justin Jude Dennis

Mrs Clare Geraldine Dennis Ms Casey Dolores Dennis Mr Saul Justin Dennis

Mr Quinn Anthony Dennis

CASE NUMBER:  1724070

HOME AFFAIRS REFERENCE(S):          BCC2017/389724

MEMBER:  Nicola Findson

DATE:  17 May 2020

PLACE OF DECISION:  Perth

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.187.233 of Schedule 2 to the Regulations.

Statement made on 17 May 2020 at 7:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Glazier – subject of ­an approved nomination – 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).

1. The applicants applied for the visas on 30 January 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. 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 Glazier (ANZSCO 333111).

1. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination in relation to the applicant had been refused.

1. The applicants appeared before the Tribunal on 12 February 2020, to give evidence and present arguments.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

Nomination of a position

1. 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.

1. 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.

1. The applicant was nominated by Glazerite & Services Pty Ltd for the position of Glazier. The position is the same as in the r.5.19 nomination application and the employer is the nominator.

1. The nomination was initially refused by the Department. However, on 17 May 2020, this Tribunal made a decision to set aside the refusal and substituted a decision to approve the nomination (Case Number 1719780).

1. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant. The Tribunal is also satisfied that the visa application was not made more than six months after the nomination of the position was approved.

1. There is no evidence before the Tribunal to suggest that there is any relevant adverse information known to the Department. The Tribunal is satisfied there is no adverse information, within the meaning of r.1.13A, known to Immigration about the nominator or a person associated with the nominator.

1. Given the above, the Tribunal finds that the applicant meets all the requirements of cl.187.233.

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

1. The secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. The applications of the secondary applicants will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for consideration.

DECISION

1. 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.187.233 of Schedule 2 to the Regulations.

Nicola Findson Member

ATTACHMENT A

187.233	(1)	The position to which the application relates is the position:
(a)      nominated in an application for approval that seeks to meet the requirements of:
(i)       subparagraph 5.19(4)(h)(ii); or
(ii)      subregulation 5.19(4) as in force before 1 July 2012; 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.