JACQUOT (Migration)

[2019] AATA 4704

JACQUOT (Migration) [2019] AATA 4704 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cedric Jacquot

CASE NUMBER:  1801947

HOME AFFAIRS REFERENCE(S):           BCC2016/4165036

MEMBERS:Bridget Cullen (Presiding)

De-Anne Kelly

DATE:5 July 2019

PLACE OF DECISION:  Brisbane

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(3) of Schedule 2 to the Regulations.

Statement made on 5 July 2019 at 12:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s nomination application refused – refusal set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 9 December 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 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 the Direct Entry stream, to work in the nominated position of Web Administrator (ANZSCO: 313113).

5. On 27 November 2017, the nomination lodged by Proteus Distribution Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister for Home Affairs.

6. As the appointment was refused, cl.187.233(3) was not met, and the delegate refused to grant the visa.

7. On 25 June 2019, the Tribunal approved the nomination made by the Company for the position of Web Administrator in respect of Mr Jacquot under r.5.19(4) of the Regulations. Accordingly, cl.187.233(3) of Schedule 2 of the Regulations is now met.

8. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

9. 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(3) of Schedule 2 to the Regulations.

   Bridget Cullen
   Presiding Member

   
   

   De-Anne Kelly
   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.