Grundy (Migration)

[2020] AATA 4051

Grundy (Migration) [2020] AATA 4051 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen James Grundy

CASE NUMBER:  1808290

HOME AFFAIRS REFERENCE(S):          BCC2016/3598945

MEMBER:Sheridan Lee

DATE:2 September 2020

PLACE OF DECISION:  Melbourne

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 requirements of cl.187.233 of Schedule 2 to the Migration Regulations 1994.

Statement made on 2 September 2020 at 10:52 am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Corporate General Manager – tribunal set aside nomination application –approved nomination – position is still available to the applicant –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 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 Home Affairs 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 28 October 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). 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 Direct Entry stream, to work in the nominated position of Corporate General 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 nomination application lodged by the applicant’s employer, Mega Adventure Park Adelaide Pty Ltd, was refused.

6. The applicant appeared before the Tribunal on 2 July 2020 give evidence and present arguments. The Tribunal also received oral evidence from representatives of the applicant’s employer.

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

   Nomination of a position

9. 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.

10. 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.

11. The position to which the application relates is the position of Corporate General Manager of Mega Adventure Park Adelaide. The position is located in regional Australia and was the subject of the declaration made as part of the current visa application.

12. The nomination application lodged by Mega Adventure Park Adelaide was refused by the Department on 9 February 2018. Mega Adventure Park Adelaide applied to the Tribunal for Merits review of that decision and on 1 September 2020 the Tribunal set aside the delegate’s decision and substituted it with a decision approving the nomination.

13. Having reviewed the current visa application and the nomination application submitted by Mega Adventure Park Adelaide, the Tribunal is satisfied that:

    ·Mega Adventure Park Adelaide made the nomination and will employ the nominee

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no adverse information known to immigration

    ·the position is still available to the applicant, and

    ·the visa application was made three days after the nomination application and therefore no more than six months after the nomination of the position was approved.

14. Therefore, cl.187.233 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets cl.187.233 of Schedule 2 to the Migration Regulations 1994.

    Sheridan Lee
    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.