Dhiver (Migration)

[2020] AATA 3881

Dhiver (Migration) [2020] AATA 3881 (10 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Paul Leonard Louis Dhiver Dhiver Ms Julie Violette Clarisse Borel

CASE NUMBER:  1917348

DIBP REFERENCE(S):  BCC2018/2241831

MEMBER:  Andrew George

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 March 2020 at 2:00 pm (NT time)

DATE OF WRITTEN RECORD:                13 July 2020

PLACE OF DECISION:  Darwin

DECISION:1. 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.187.211 of Schedule 2 to the Regulations;

·cl.187.212 of Schedule 2 to the Regulations;

·cl.187.212A of Schedule 2 to the Regulations;

·cl.187.231 of Schedule 2 to the Regulations;

·cl. 187.232 of Schedule 2 to the Regulations;

·cl.187.233 of Schedule 2 to the Regulations; and

·cl.187.234 of Schedule 2 to the Regulations

2. The Tribunal recommends that the application of the secondary applicant is reconsidered in light of the findings regarding the first named applicant.

Statement made on 13 July 2020 at 11:15am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Conference and Event Organiser – nomination approved upon review – police clearance certificates – English language proficiency – qualifications and extensive work experience – decision under review remitted     

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.211, 187.212, 187.212A, 187.231, 187.232, 187.233, 187.234

APPLICATION FOR REVIEW

1. At the hearing on 10 March 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs to grant the applicant’s regional employer nomination permanent class RN visas under section 65 of the Migration Act 1958, which I will again call the Act. The applicant’s applied for the visas on 24 May 2018.

1. At the time of the application, class RN contained one subclass, subclass 187 regional response of migration scheme. A criteria for a subclass 187 visa set out in part 187 of schedule two to the Migration Regulations 1994, which I will again call the regulations.

1. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, in this case Ms Borel, who 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 or two alternative visa streams: the Temporary Resident’s Transition stream or the Direct Entry stream.  In the present case, the first name applicant, Mr Dhiver, who I will call the applicant, is seeking the visa in the direct entry stream to work in the nominated position of conference and event organiser (ANZSCO code 149311). The delegate refused to grant the visas because the applicant did not have a successful nomination.

1. Mr Dhiver appeared before the Tribunal on the present date, 10 March 2020, to give evidence and present arguments. This is a combined hearing now with the nomination where Mr McDonald also gave evidence. The Tribunal did not call upon Ms Borel to give evidence. The applicants were represented in relation to their review by their registered migration agent, Mr Kelleher of Ward Keller.

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

1. The first consideration of the Tribunal regards licensing registration and membership requirements. In short, there is no evidence before the Tribunal that the nominated position requites licencing and registration or membership of any kind in the relevant location, which is the Northern Territory of Australia. Therefore, clause 187.211 is not applicable and is met.

1. The next criterion is that employment will be provided. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the nominated application. The Tribunal refers to its decision in the nomination where it has found that indeed, the nominated position will provide Mr Dhiver with employment as specified in the related nomination application. Therefore, clause 187.212 is clearly met.

1. The next consideration of the Tribunal is whether or not the applicant has engaged in conduct in contravention of the Act. The Tribunal has before it, a police certificate from Australia and also a police clearance certificate from France. And there is no indication that the applicant has, in any way, contravened any relevant Act. Therefore, clause 187.212(A) is met.

1. The next requirement regards the applicant’s age. In this case, the visa application was made on or after 1 July 2017 which means that the applicant must not have turned 45 at the day of application. The Tribunal files indicate that the applicant was born on 18 February

1989 and as such, was under the age of 45 at the date of application. Therefore, clause

187.231 is met.

1. The next consideration for the Tribunal regards English language proficiency. At the time of this application, the applicant must have had competent English and have undertaken a specified test which includes the IELTS and the three years preceding the visa application. The Tribunal notes that the date of the visa application was 24 May 2018. The Tribunal has before it an IELTS report form dated 3 May 2018 which is within three years of the date of application. The IELTS report identifies Mr Dhiver and gives test results of listening as 9.0, reading as 9.0, writing as 6.5 and speaking as 7.0. This is well and truly competent English as far as the Act regulations and relevant instruments are concerned. And as such, Mr Dhiver has met the requirements in clause 187.232.

1. The next criterion for consideration is clause 187.233, which goes to the nomination position. I won’t labour this too far, noting that the nomination for the position has just been approved. There is no evidence that in the time that it has been approved, that it has in any way been withdrawn or that the applicant has, for any reason whatsoever, decided that he did not want to work in that position or that it is not still available to them.  Therefore, the Tribunal expressly finds that the nominator will employ the applicant in the nominated position, that the nomination has been approved and not subsequently withdrawn, and that the position is still available to the applicant. For completeness, the Tribunal also finds that there is no adverse information known to immigration about the applicant or any person associated with the applicant, and also that the visa application was made no more than six months after the nomination of the position was approved, noting that the position was, in fact, approved as of today. Therefore, clause 187.233 is made out and met.

1. The next criterion is clause 187.234 that requires numerous things. In these specific circumstances, it requires that the applicant had the qualifications solicited in ANZSCO as being necessary to perform the tasks of the occupation, conference and event organiser 149311. The Tribunal has paid attention to Mr Dhiver’s resume. The Tribunal notes that Mr Dhiver has extensive work experience in these areas and also, he has a master’s degree in Marketing that was obtained in 2013. The Tribunal accepts that evidence, as such, the Tribunal finds that the applicant has been employed in the occupation for at least three years on a fulltime basis at a skill level required for the occupation, thereby meeting clause 187.234.

1. Given these findings, the appropriate course is to remit the application to the department for a reconsideration of any remaining criteria and having made these findings, there are very few, and the Tribunal will do so. The Tribunal does not have jurisdiction to deal with

   Ms Borel’s application. However, I will recommend that Ms Borel’s application is reconsidered in light of the primary applicants.

DECISION

1. The decision of the Tribunal therefore, is this: the Tribunal remits the applications regional employer nomination permanent class RN visas for reconsideration with a direction that the first named applicant meets the following criteria for a subclass 187 regional sponsored migration scheme visa:

·cl.187.211 of Schedule 2 to the Regulations;

·cl.187.212 of Schedule 2 to the Regulations;

·cl.187.212A of Schedule 2 to the Regulations;

·cl.187.231 of Schedule 2 to the Regulations;

·cl. 187.232 of Schedule 2 to the Regulations;

·cl.187.233 of Schedule 2 to the Regulations; and

·cl.187.234 of Schedule 2 to the Regulations

1. The Tribunal recommends that the application of the secondary applicant is reconsidered in light of the Tribunal’s findings in relation to the primary applicant.

Andrew George Member