Hamilton-Fox (Migration)

[2023] AATA 4389

Hamilton-Fox (Migration) [2023] AATA 4389 (15 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Charles Samuel Hamilton-Fox
Ms Alice Rebecca Wigley

REPRESENTATIVE:  Mr Ettienne de Villiers Hugo

CASE NUMBER:  2006494

HOME AFFAIRS REFERENCE(S):          BCC2019/5793439

MEMBER:Wan Shum

DATE:15 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

·cl 187.223(1), (2), and (6) of Schedule 2 to the Regulations

Statement made on 15 December 2023 at 5:45pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – guest house manager – subject of approved position nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.223(1), (2), (6)

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 Regional Employer Nomination (Permanent) visas to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 15 November 2019. The delegate refused to grant the visas on 17 March 2020.

2. In the present case, the first named applicant is seeking the visa to work in the nominated position of Guest House Manager. The related nomination was made by Rivertree Land & Cattle Company Pty Ltd (the nominator).

3. A decision was made not to approve the nomination and, as a consequence, the delegate refused to grant the visas as the applicant did not meet cl 187.223 of Schedule 2 to the Regulations.

4. Both the nominator and the applicant sought review of these decisions and were represented by the same lawyer.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the position to which the application relates is the subject of an application for approval of a nomination 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.

6. On the visa application, details of a related nomination were provided which refers to the nomination made by the nominator for the position of Guest House Manager. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence: “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”. Given this, cl 187.223(1) is met.

7. On 15 December 2023, the Tribunal decided to approve the nomination made by the nominator. Therefore, cl 187.223(2) is now met.

8. The visa application was made prior to the nomination being approved so the application was not made more than six months after the nomination of the position was approved such that cl 187.223(6) is met.

9. Therefore, at the time of this decision, the requirements of cl 187.223(1), (2), and (6) are all met. The remaining requirements of cl 187.223 and the remaining criteria for the visa will be assessed upon remittal of the visa application to the Minister.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

    ·cl 187.223(1), (2), and (6) of Schedule 2 to the Regulations

    Wan Shum
    Member