DUINEVELD (Migration)

[2018] AATA 1994

DUINEVELD (Migration) [2018] AATA 1994 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms ILSE DUINEVELD

CASE NUMBER:  1714921

DIBP REFERENCE(S):  BCC2016/4019378

MEMBER:Penelope Hunter

DATE:13 June 2018

PLACE OF DECISION:  Sydney

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 13 June 2018 at 9:57am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position – Dog handler – Nomination approved by the Tribunal – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 November 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 one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Dog Handler or Trainer (ANZSCO 361111). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 related nomination application was refused.

6. The applicant appeared before the Tribunal on 12 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr David Wright, director of the nominator employer.

7. The applicant was represented in relation to the review by her registered migration agent.

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 in cl.187.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

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 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.

12. The applicant was nominated by Dog Force Group Pty Ltd for the position of Dog Handler or Trainer. The position is the same as in the r.5.19 nomination application and the employer is Dog Force Group Pty Ltd. Dog Force Group Pty Ltd is in the business of providing and training security and detection dogs for the law enforcement and the security industry, in addition to training for their handlers. It operates its business in Falls Creek New South Wales where the applicant is proposed to be employed.

13. The nomination was initially refused by the Department. On 13 June 2018, the Tribunal made a decision to set aside the refusal and substitute a decision approving the nomination application.

14. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant. The Tribunal is satisfied that the visa application was not made more than six months after the nomination of the position was approved. There is no evidence before the Tribunal regarding the nominator that may be considered adverse.

15. For the above reasons the Tribunal finds that the requirements of cl.187.233 is met.

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

    DECISION

17. 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; and

    Penelope Hunter
    Member