Duffy (Migration)

[2022] AATA 4790

Duffy (Migration) [2022] AATA 4790 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Derek Duffy

REPRESENTATIVE:  Mr Constantine Paxinos (MARN: 1460971)

CASE NUMBER:  1922072

HOME AFFAIRS REFERENCE(S):          BCC2018/727922

MEMBER:George Hallwood

DATE:16 December 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 16 December 2022 at 9:56am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – food and beverage manager – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal set aside – 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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 February 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Food and Beverage Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the associated nomination by Karma Darwin Pty Ltd had refused on 12 June 2019.

6. The applicant, Mr Derek Duffy, appeared before the Tribunal on 18 November 2022 to give evidence and present arguments. As it was a combined hearing with that of the associated nominator, Karma Darwin Pty Ltd case number 1917724, Mr Jason Hanna appeared on behalf of the nominator and gave oral evidence.

7. The applicant was represented in relation to the review.

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 the applicant meets the requirements of clause 187.233.

   Nomination of a position

10. 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.

11. 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 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.

12. On 16 December 2022 the Tribunal approved the nomination of the position to which this application relates in the Direct Entry stream, located in regional Australia. The position is the one that was the subject of the declaration made as part of the current visa application and identified the applicant in relation to the position.

13. At the hearing Mr Hanna confirmed that Karma Darwin Pty Ltd who made the nomination is the person that will employ the applicant.

14. The nomination has been approved by the Tribunal today and has not subsequently been withdrawn.

15. On 29 July 2016 a notice of decision of a formal warning was sent to the applicant. The formal warning was issued in relation to a failure to satisfy a number of sponsorship obligations. At the time the warning was issued the delegate of the Minister was satisfied that circumstances to bar or cancel the sponsor existed but having considered all of the relevant decision making criteria, the Department decided not to apply a bar or cancellation in that instance.

16. The Tribunal is satisfied that the decision not to apply a bar or cancellation was correct in July 2016.

17. The Tribunal is not aware of any further instances of adverse information known to Immigration about the nominator or person associated with the nominator.

18. Having considered the information before the Tribunal, I am satisfied that it is reasonable to disregard the adverse information for which the Department decided not to apply a bar or cancellation in July 2016.

19. At the hearing Mr Hanna confirmed that the position is still available to the applicant.

20. As the visa application was made on 13 February 2018 and the nomination was approved on 16 December 2022, the Tribunal is satisfied that the visa application was made no more than six months after the nomination of the position was approved.

21. Therefore, cl 187.233 is met.  

    CONCLUDING PARAGRAPH

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

    decision

23. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations.

    George Hallwood
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.