Georgiadis (Migration)

[2020] AATA 1301

Georgiadis (Migration) [2020] AATA 1301 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michail Georgiadis
Ms Kalliopi Psara
Mr Dimitrios Georgiadis
Mr Sakellarios Georgiadis

CASE NUMBER:  1803908

DIBP REFERENCE(S):  BCC2017/2336720

MEMBER:Andrew George

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 March 2020 at 10:00 am (NT time)

DATE OF WRITTEN RECORD:                14 April 2020

PLACE OF DECISION:  Adelaide

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.187.221 of Schedule 2 to the Regulations;

· cl. 187.222 of Schedule 2 to the Regulations; and

· cl.187.223 of Schedule 2 to the Regulations;

2.  The Tribunal recommends that the applications of the secondary applicants are reconsidered in light of the findings regarding the first named applicant.

Statement made on 14 April 2020 a 4:15pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition Stream – Diesel Motor Mechanic – mandatory licensing registration – not required within the Northern Territory – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.211, 187.212, 187.212A, 187.221, 187.222, 187.223

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 1 February 2018 to refuse to grant the visa applicants  Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (the Act).

2. At the hearing on 6 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

3. I will be finding in your favour, or your family’s favour, and remitting the matter to the department.

4. In light of you having brought your employers along and Mr John Halkitis having been able to state on oath that evidence, I am able to remit on numerous points so I propose to break that into layman’s terms, sometimes you win by a metre and sometimes you win by a mile.  Today you have won by a mile.

5. This is the decision in case number 1803908.  The primary applicant is Mr Michail Georgiadis.

6. This is an application for a review of a decision made by a delegate for the Minister for Home Affairs to refuse to grant the applicant a Regional Employee Nomination Permanent Class RN visas under section 55 of the Migration Act 1958 which I will refer to as “The Act”.

7. The applicant is Mr Georgiadis, you and your family, applied for the visas on 30 June 2017. At the time of the application Class RN contained one subclass, subclass 187 Regional Sponsored Migration Scheme. The criteria for a subclass 187 visa are set out in part 187 of Schedule 2 to the Migration Regulations 1994 which I will refer to as “The Regulations.”

8. The primary criteria must be satisfied by at least one applicant, which in this case is you, Mr Georgiadis.  Other family members, if any - as there are in this case - who are applicants for the visa, must only satisfy 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 resident transition stream or the direct entry stream. 

9. In the present case the first-named applicant, Mr Georgiadis, who I will just refer to as “the applicant” is seeking the visa in the temporary residence transition stream to work in the nominated position of diesel motor mechanic which has the ANZSCO code 321212. 

10. The delegate refused to grant the visas to Mr Georgiadis because he did not meet, so they said, clause 187.211 of Schedule 2 to the Regulations because the delegate was of the view that the nominated position of diesel motor mechanic required licensing registration or membership of a professional body in the jurisdiction of the Northern Territory. This decision will find that was a misconception.

11. The first named applicant, Mr Georgiadis, appeared at the tribunal on the present date, 5 March 2020, prepared to give evidence, however was not called upon by the tribunal to do so, given the previous submissions made by his agent.  The tribunal did call upon Mr Georgiadis’ employer, Mr John Halkitis, to give evidence.  The applicants were represented in relation to the review by their registered migration agent, Mr Kelleher,of Ward Keller.

12. For the following reasons the tribunal has concluded the matter should be remitted for reconsideration.  The first issue that the tribunal will deal with is that of licensing registration and membership.  Clause 187.211 applies to all primary applicants if it is mandatory in the state or territory where the nominated position is located, to hold a licence, registration or membership of a professional body to undertake the tasks of a kind to be performed in the occupation to which the position relates and in these cases the applicant must hold or be eligible to hold such a licence, registration or membership at the time of the visa application.

13. The tribunal has before it a letter from Ms Pompea Sweet, who is the Director of Migration NT which is part of the Department of Trade, Business an Innovation which I will abbreviate as DTBI of the Northern Territory Government.  This letter is dated 2 March 2020.

14. Ms Sweet’s letter is an authoritative source coming from the Northern Territory Government and requires the tribunal to pay particular attention to it.  The tribunal notes that Ms Sweet has written that DTBI can confirm that no - and this is a quote -

    DTBI can confirm that no registration, licensing nor professional membership requirements exist within the Northern Territory to work within the occupation of diesel motor mechanic.   Halkitis Bros are a long established business in the Northern Territory and well known to DTBI.   Halkitis Bros play an integral part within a key industry of the Northern Territory.  DTBI have identified the occupation of diesel motor mechanic as being in shortage in the NT with insufficient suitably skilled Australians and Australian PR within the region available to fill shortages.  This is confirmed by the inclusion of the occupations within the NT Skilled Occupation List.

15. Given Ms Sweet’s evidence, it is clear to the tribunal that clause 187.211 is not applicable.

16. The tribunal is in the position to move to other considerations and one of those is whether or not employment will continue, is provided and will continue to be provided to Mr Georgiadis.   Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the nomination.  The tribunal file states the relevant nomination was approved on 7 December 2007 - although it is clearly a mistake and that should read “7 December 2017.”

17. The nominator is the Halkitis Bros.   The tribunal accepts the evidence of Mr John Halkitis that the applicant is a valued employee of Halkitis Bros as a diesel motor mechanic and there is no indication of his employment there being terminated for any reason any time in the next two years.

18. Therefore the tribunal is satisfied that the nominated position will provide the applicant with the employment referred to in the related nomination application and therefore clause 187.212 is met.

19. The next consideration of the tribunal is whether the applicant has engaged in a contravention of the Act.  I say at the outset that there is no evidence of this and it needs not to be addressed in any detail except that the tribunal expressly finds that there is no evidence before the tribunal that the applicant has engaged in conduct that is in contravention of the Act and therefore the tribunal is satisfied that no such conduct has occurred and hence clause 187.212A is met.

20. The tribunal moved to the issue of the age requirement of the visa.  At the time the visa application is made the applicant in the temporary resident transition stream must meet certain age requirements and the reference there is clause 187.241.  In this case as the visa was made before 18 March 2018, the applicant must not have turned 50 at the time of the application and in the present case the tribunal files note that the applicant was born on 29 August 1978 and therefore was under the age of 50 on 30 June 2017, being the date of the visa application and therefore clause 187.221 is met.

21. The tribunal moves to the issue of English language proficiency.  At the time the visa application is made an applicant in the temporary resident transition scheme must have a defined level of English language proficiency and the reference there is clause 187.222.   For visa applications made before 1 July 2017 the level required is vocational English and Mr Georgiadis, you made that by a day.

22. Vocational English is defined in Regulation 1.15B and a person will meet the definition if he undertook an International English language testing system, IELTS test, within three years of the date the application, received a score of at least five of each of the  four components.  The tribunal has before it an IELTS result dated 4 December 2014.  This is within three years of the date of the visa application, being 30 June 2017.  The applicant’s test results were as follows;  listening 6, reading 5.5, writing 6 and speaking 6.5, all being a score of at least 5 or above, therefore clause 187.222 is met.

23. Given the attendance of Mr John Halkitis and his evidence today I am also able to deal with the issue of the nomination of the position, which is clause 187.223 which is applicable in this case, which essentially it requires that a position to which the application relates is - I will backtrack.  Essentially, clause 187.223 requires that the position to which the application relates is the subject of an application for approval of a nomination in the temporary residence transition stream that identifies the visa applicant and the position must be the one that was the subject of the declaration made as part of the current visa application.   There are several additional criteria as well, that is that the nomination has been approved and has not been subsequently withdrawn.  There is no indication on the tribunal file that the nomination had been subsequently withdrawn and indeed and the attendance that obviously the nomination has not been withdrawn and therefore the tribunal is satisfied that the nomination has been approved and has not been subsequently withdrawn.

24. The next criteria is that there is no adverse information known to Immigration about the person who made the nomination or a person associate with that person within the meaning of Regulation 1.13A and 1.13B.

25. The tribunal has before it Mr Georgiadis, your criminal history checks from both Australia and Greece and also those of your wife, Ms Kalliopi Psara.  Essentially those criminal history checks were clear for both of you, therefore there is no information about you or a person associated with you and the tribunal is satisfied that there is therefore no adverse information known to Immigration.

26. The next criteria for the position is located in regional Australia, which includes Darwin, the tribunal notes the evidence of Mr John Halkitis and is satisfied that your position is located in Darwin and therefore in regional Australia.

27. The next criteria for the tribunal to consider are that the position is still available to the applicant and again, the tribunal accepts the evidence of Mr John Halkitis that the position is still available for the applicant.

28. Finally, the tribunal considers whether or not the application was made within six months of the approval of the nomination or to be more precise, no more than six months after the nomination of the position was approved in any event.  The nomination was approved on 7 December 2017 and the application was made on 30 June 2017, therefore being a period of less than six months and therefore, taking all those points into consideration of clause 187.223 in there.

29. Given these findings, the appropriate course is to remit the visa application to the Minister to consider any remaining criteria for the visa which cannot surely be many, if any. 

30. Given this course, the tribunal also recommends that the applications of the secondary applicants are reconsidered in light of the findings regarding the first named applicant and it is perhaps useful for the tribunal to point out the tribunal does not have jurisdiction to deal with the applications of the secondary applicants any further than it has done in making that recommendation.

    DECISION

31. Accordingly, the decision of the tribunal is this: the tribunal remits the application 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. Clause 187.211 of Schedule 2 to the Regulations, clause 187.212 of Schedule 2 to the Regulations, clause 187.212A of Schedule 2 to the Regulations, clause 187.221 of Schedule 2 to the Regulations, clause 187.222 of Schedule 2 to the Regulations and clause 187.223 of Schedule 2 to the Regulations. The tribunal further recommends that the applications of the secondary applicants are reconsidered in light of the findings regarding the first-named applicant.

32. That should hopefully deal with the matter, Mr Kelleher, as comprehensively as we can do.

33. That concludes today, thank you.

    Andrew George
    Member