Krekt (Migration)

[2019] AATA 1536

Krekt (Migration) [2019] AATA 1536 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Marij Annelien Krekt

CASE NUMBER:  1621833

HOME AFFAIRS REFERENCE(S):           BCC2016/1504704

MEMBER:Susan Trotter

DATE:4 January 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 04 January 2019 at 2:02pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Public Relations Manager – nomination approved upon review – secondary applicant remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 Immigration and Border Protection 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 20 April 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 Public Relations Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination had been refused on 11 November 2016 and that accordingly the applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 December 2016.

7. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite a representative of the applicant to appear before the Tribunal.

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 there is an approved nomination.

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Clause 187.233(3) is one of the essential criteria that must be met. It requires that the position to which the application relates is the subject of an application for approval of a nomination, which nomination has been approved.

11. Records of the now Department of Home Affairs[1] (the Department) indicate that the applicant’s employer, RJ Kinnon & Co Pty Ltd, made an application to have the position of Public Relations Manager approved, with the applicant as the nominee, with the Department on 20 April 2016. The nomination application was refused on 11 November 2016 and RJ Kinnon & Co Pty Ltd sought review of that decision with the Tribunal on 30 November 2016.

    [1] Previously the Department of Immigration and Border Protection

12. On 4 January 2019, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by RJ Kinnon & Co Pty Ltd.

13. Therefore, cl.187.233(3) is now met.

14. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction - Conducting Migration and Refugee Reviews (30 June 2015), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    Conclusion

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

    DECISION

16. 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).

    Susan Trotter
    Member

    
    

    ATTACHMENT

    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.