Eggleton (Migration)

[2019] AATA 3386

Eggleton (Migration) [2019] AATA 3386 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nicholas Ronald Eggleton
Mrs Lisa Eggleton
Ms Grace Vivien Eggleton
Ms George Margaret Rose Eggleton
Mr Arthur Eggleton
Mr Albert Eggleton

CASE NUMBER:  1803231

HOME AFFAIRS REFERENCE(S):          BCC2017/2339162

MEMBERS:Susan Trotter (Presiding)
Andrew McLean Williams

DATE:16 July 2019

PLACE OF DECISION:  Brisbane

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

·cl.187.233(3) of Schedule 2 to the Regulations.

Statement made on 16 July 2019 at 12:38pm

Statement made on 16 July 2019 at 12:37pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Dog Handler or Trainer – subject of an approved nomination – nomination application now approved by Tribunal – 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 on 18 January 2018 to refuse to grant each of the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for their visas on 30 June 2017. 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 two alternative visa streams: the Temporary Residence Transition stream or the Direct Entry stream.

4. In the present case, the first-named applicant Mr Nicholas Ronald Eggleton (the primary applicant) is seeking a visa in the Direct Entry stream, to work in the nominated position of Dog Handler or Trainer (ANZSCO Category 361111), employed by The Trustee for CK9-SAS.

5. On 4 December 2017, the nomination application lodged by The Trustee for CK9-SAS, being the nomination referred to in cl.187.233(1) was refused by a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs). That refusal was made on the basis that at that time CK9-SAS had not demonstrated to the delegate the need for a paid employee in the nominated position. Subsequently, on 18 January 2018, a delegate of the Minister refused to grant each of the applicants a Subclass 187 visa on the basis that the primary applicant’s employment position was not the subject of a nomination that had been approved by the Minister.

6. On 16 July 2019, the Tribunal approved the nomination made by The Trustee for CK9-SAS for the position of Dog Handler or Trainer in respect of the first-named applicant under r.5.19(4) of the Regulations. In light of that, cl.187.233(3) of Schedule 2 to the Regulations is now met by the primary applicant.

7. Given this finding, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

   DECISION

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

   · cl.187.233(3) of Schedule 2 to the Regulations.

   Susan Trotter
   Member

   
   

   Andrew McLean Williams
   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.