Dewhurst (Migration)

[2023] AATA 657

Dewhurst (Migration) [2023] AATA 657 (22 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Anita Dewhurst
Mr Benjamin David Bickley

CASE NUMBER:  1925866

HOME AFFAIRS REFERENCE(S):          BCC2018/5821183

MEMBER:Susan Reece Jones

DATE:22 March 2023

PLACE OF DECISION:  Melbourne

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; and

Statement made on 22 March 2023 at 3:12pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – marketing specialist – subject of approved position nomination – refusal of related nomination application set aside – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(12), Schedule 2, cl 187.233(2)

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 25 December 2018. 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 Marketing Specialist (ANZSCO 225113).

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 nominator’s nomination did not satisfy reg 5.19(12) of the Regulations because the Regional Certifying Body (RCB) Geelong, Victoria deemed the assessment not to satisfy requirements and that the applicant did not reasonably exhaust the possibility of recruiting an Australian citizen or Permanent Resident living in the local area.

6. The applicants appeared before the Tribunal on 7 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator’s director, Mr Kane Snelling and the nominee, Ms Anita Dewhurst.

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 relevant nomination has been approved as required by 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 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 the 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. The applicant applied for a visa on the basis of a nomination made by KDS Cabinets Pty Ltd as Trustee for Snelling Family Trust. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which she made the relevant declaration at the time of the visa application, was refused by the Department on 4 July 2019.

12. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 22 March 2023, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

13. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.187.233(2). Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

14. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that he meets the requirements of clause.187.233(2), the remaining criteria for the applicant should now be reconsidered. In addition, the application of the second named visa applicant should also now be reconsidered in full.

    DECISION

15. 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

    Susan Reece Jones
    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.