Kunst Barcellos (Migration)

[2021] AATA 2191

Kunst Barcellos (Migration) [2021] AATA 2191 (25 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Barbara Kunst Barcellos
Mr Kim Souza Tong

CASE NUMBER:  1828554

HOME AFFAIRS REFERENCE(S):          BCC2017/2271625

MEMBER:Terrence Baxter

DATE:25 May 2021

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(2) of Schedule 2 to the Regulations; and

·cl.187.233(3) of Schedule 2 to the Regulations.

Statement made on 25 May 2021 at 9:38am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Restaurant Manager – tribunal set aside nomination application –subject of an approved nomination – member of the family unit of the applicant –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.233, 187.311

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 June 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 (Cth) (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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas on 11 September 2018 because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations which required that she be the subject of an approved nomination. The delegate found that the nomination referred to in cl.187.233(1) of Schedule 2 was refused on 19 June 2018 and that accordingly the applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 187 visa, as he did not meet the secondary visa criterion (cl.187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 28 September 2018.

8. The applicants appeared before the Tribunal by video conference on 10 March 2021 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the relevant nomination application.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

10. The applicants were represented in relation to the review by their registered migration agent. The representative also attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 of the Regulations ); 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that J Osmond Dreyer and R C Osmond‑Dreyer made an application to the Department to have the position of Restaurant Manager approved, with the applicant as nominee, on 14 June 2017. The nomination application was refused on 19 June 2018 and the nominator sought review of that decision with the Tribunal on 2 July 2018.

16. The nomination application names as applicant J Osmond Dreyer and R C Osmond‑Dreyer with the trading name Yellow Flower. The registration identifier for the business is stated as ABN 85 289 499 579. An ABN Lookup form for that ABN was provided to the Department. However, all other documents provided to the Department in support of the application relate to Ms Jemma Osmond Dreyer as a sole trader, with ABN 12 125 302 807. The Employment Agreements and all financial documents produced to the Tribunal in relation to the application to review the refusal of the nomination application are for Ms Osmond Dreyer as a sole trader with that ABN.

17. Ms Osmond Dreyer provided written statements to the Tribunal in that application for review that she personally operated the nominating business at the time of lodgement of the nomination application and that she (emphasis by the Tribunal) nominated the position for the applicant. She gave evidence at the joint hearing that she had operated the business solely since July 2015 and that the naming of the partnership of J Osmond Dreyer and R C Osmond‑Dreyer as applicant was a clerical error which was a genuine error without any intention to mislead or provide misinformation.

18. In that nomination matter, for the reasons set out in its decision, the Tribunal (as presently constituted) determined that Ms J Osmond Dreyer solely applied for approval of the nomination. Ms Osmond Dreyer will hereafter be referred to in these Reasons as the nominator.

19. On 18 May 2021, 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 the nominator.

20. The nominator provided to the Tribunal an Employment Agreement whereby the nominator agrees to employ the applicant in the position of Restaurant Manager.

21. Therefore, cl.187.233(2) and cl.187.233(3) are met in relation to the applicant.

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

23. The second named applicant applied on the basis that he is a member of the family unit of the applicant. His application will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation to the first named applicant.

    DECISION

24. 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(2) of Schedule 2 to the Regulations; and

    ·cl.187.233(3) of Schedule 2 to the Regulations.

    Terrence Baxter
    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.