Javier (Migration)

[2020] AATA 3889

Javier (Migration) [2020] AATA 3889 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shyla Soriano Javier
Mr Jojo Oliveros Javier
Mr Lexmarc Soriano Javier
Mr Luke Matthew Soriano Javier

CASE NUMBER:  1805783

HOME AFFAIRS REFERENCE(S):          BCC2017/3845560

MEMBER:K. Chapman

DATE:10 September 2020

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 first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 10 September 2020 at 10:56am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – tribunal approved nomination – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233, rr 1.13A, 1.13B, 5.19(4)

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 22 February 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant, Mrs Shyla Javier, applied for the visa on 19 October 2017, including the second, third and fourth named applicants in the application. 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 (hereafter ‘the applicant’) is seeking the visa in Direct Entry stream, to work in the nominated position of Dental Technician (ANZSCO 411213). That position was nominated by The Trustee for Australasian Dental Group (Perth) No.2 Unit Trust (‘the nominator’), the applicant’s employer.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to her. The delegate found that the nomination made by the nominator had been refused on 18 January 2018. Additionally, the second, third and fourth named applicants were refused the visa given they were not a member of the family unit of a person who met the primary visa criteria and there was no evidence that they met the primary visa criteria in their own right. On 5 March 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application for review.

6. The applicant appeared by telephone before the Tribunal on 9 September 2020 to give evidence and present arguments. The applicant confirmed that she was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.187.233.

   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. Further, 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 applicant gave oral evidence to the Tribunal indicating that she is genuinely employed by the nominator in the role of Dental Technician and that they continue to require her services in regional Western Australia. She has been so employed since February 2016. The applicant stated that she will remain employed by the nominator for at least the next two years. The Tribunal accepts the oral evidence of the applicant.

12. On 10 September 2020, the Tribunal set aside the Department's decision concerning the application for nomination and substituted a decision to approve the nomination in respect of the nominator under r.5.19(4) (see AAT matter 1802794). The evidence before the Tribunal indicates that the original nominator will still employ the applicant in the position in Regional Australia and will proceed with the nomination, in addition to the visa application having been made within the requisite time frame. Further, there is no evidence of adverse information in relation to the nominator.

13. Therefore, cl.187.233 is satisfied by the applicant. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

14. The Tribunal finds that as the second, third and fourth named applicants applied for the visa on the basis of being a member of the family unit of the applicant, their application will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration. The Tribunal notes that the aforementioned secondary applicants are the husband and minor children of the applicant.

    DECISION

15. The Tribunal remits the application for 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.187.233 of Schedule 2 to the Regulations.

    K. Chapman
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.