Laouar (Migration)

[2020] AATA 5664

Laouar (Migration) [2020] AATA 5664 (17 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Assia Laouar
Mr Tony Jean-Jacques Martial Deshayes

CASE NUMBER:  1825586

DIBP REFERENCE(S):  BCC2016/4183775

MEMBER:Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 November 2020 at 2:38 pm (VIC time)

DATE OF WRITTEN RECORD:                30 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 30 November 2020 at 2:28 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 August 2018 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (the Act).

2. At the hearing on 17 November 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. On 11 December 2016, Ms Laouar and her partner applied to the Department of Home Affairs or Regional Employer Nomination subclass 187 visas. 

4. The criteria for a subclass 187 visa are set out in part 187 of schedule 2 to the Migration 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 only satisfy only the secondary criteria.

5. In the present case the applicant is seeking the visa in the direct entry stream. Clause 187.233 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 to which the visa application relates must be the position in relation to which the declaration mentioned in paragraph 114(c)(iii)(d) of schedule 1 was made. That is, a declaration that the position is nominated. This requirement cannot be satisfied by a later nomination of a position made by a different employer, and the nomination of the same position made by the same employer cannot be relied on to meet these schedule 2 criteria.

6. In the current matter the nomination application lodged by the applicant’s prospective employer was refused by a delegate of the Minister.  The company applied to the tribunal for a merits review with that decision, however the application was later withdrawn.  No subsequent nomination applications were made.  The applicant has acknowledged today that she is not the subject of approved or pending nomination in the direct entry stream. 

7. As the applicant has only sought to satisfy the criteria for a subclass 187 visa in the direct entry stream, no claims have been made in respect of the other visa streams.  The requirements that must be met by a person seeking the visa in the direct entry stream have not been met.  Therefore, the decision under review must be affirmed.

8. The second-named applicant applied for the visa on the basis that he’s a member of the family unit of another person who holds a subclass 187 visa.  As the primary applicant was found not to meet the prescribed criteria, the secondary applicant does not satisfy clause 187.311.

9. The tribunal affirms the decision not to grant the applicant regional employer nomination visas.

   DECISION

10. The Tribunal affirms the decisions under review.

    Sheridan Lee
    Member