Kaya (Migration)

[2020] AATA 2279

Kaya (Migration) [2020] AATA 2279 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zehra Kaya

CASE NUMBER:  1809532

HOME AFFAIRS REFERENCE(S):          BCC2017/4166938

MEMBER:De-Anne Kelly

DATE:4 June 2020

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 of Schedule 2 to the Regulations.

Statement made on 04 June 2020 at 1:51pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme – direct entry stream – related position nomination refused – refusal set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1, cl 1114B(3)(d), 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 8 November 2017. 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 Direct Entry stream, to work in the nominated position of Sales Representative (Industrial Products) ANZSCO 225411.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because on 21 February 2018, the employer nomination lodged by Huesker Australia Pty Ltd was refused by a delegate of the Minister being the application referred to in cl.187.223(1)

6. The applicant appeared before the Tribunal on 21 May 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

7. The applicant was represented in relation to the review by her barrister, Mr Lorrenzo Boccabella of North Quay, Brisbane QLD who is also a registered migration agent MARN: 9580738 and her registered migration agent, Mrs Sonja Nikolovski of Nikolovski Lawyers, Wollongong, NSW, MARN: 9800728

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

   CONSIDERATION OF CLAIMS AND EVIDENCE             

9. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

12. The visa application was acknowledged by the Department of Immigration and Border Protection on 8 November 2017, and is consistent with the declaration in cl.1114B(3)(d) of Schedule 1 to the Regulations being made in the application for the grant of the visa.

13. Mr Morne Breytenbach, the managing director of Huesker Australia Pty Ltd made the nomination and signed the Employment Contract demonstrating that he is the person who will employ the applicant and is the person who made the nomination. The application made was for the approval of the position of Sales Representative (Industrial Products) on a salary of $120,000 per annum.

14. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. The Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. The nomination has therefore been approved and has not been withdrawn by Mr Morne Breytenbach, the managing director of Huesker Australia Pty Ltd.

15. There is no information before the Tribunal constituting adverse information regarding Mr Morne Breytenbach, the managing director of Huesker Australia Pty Ltd.

16. The most recent employment contract dated 20 January 2017  and signed by both the nominator and the applicant together with a deed of amendment also signed by both the applicant and nominee demonstrate that the position is still available to the applicant. The visa application was made on 8 November 2017 and therefore was made no more than six months after the nomination of the position was approved.

17. Therefore, cl.187.233 is met.

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. 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 of Schedule 2 to the Regulations;

    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

    (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.