Linehan (Migration)

[2020] AATA 2379

Linehan (Migration) [2020] AATA 2379 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nigel Linehan
Miss Wantana Janthron

CASE NUMBER:  1726855

HOME AFFAIRS REFERENCE(S):          BCC2017/1331917

MEMBER:Susan Reece Jones

DATE:26 June 2020

PLACE OF DECISION:  Melbourne

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.187.223(2) of Schedule 2 to the Regulations

Statement made on 26 June 2020 at 9:30am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Bricklayer – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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

2. The applicants applied for the visas on 10 April 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position Bricklayer (ANZSCO: 331111) for the nominator, Brajkovich Demolition & Salvage Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations which required that the applicant be the subject of an approved nomination by his nominating employer. The delegate found that the Department had refused to approve the nomination of the nominee by Brajkovich Demolition & Salvage Pty Ltd on 21 September 2017.

6. The Tribunal received a review application from the applicant on 21 October 2017 which was accompanied by a copy of the delegate’s decision and an authority by which he appointed migration agent, Ms Rachel Praxl of Australian Visa Assist to act as his representative and authorised recipient for correspondence.

7. The applicants appeared before the Tribunal on 29 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Adrian Brajkovich, sole director of the nominator and Ms Allyson Grant, HR Manager of the nominator.

8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.187.223.   

    Nomination of a position

11. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

12. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19 per Immi 16/045 which was the Instrument in force at the time of application and specifying Skilled Migration Western Australia)

    ·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.

13. The applicant applied for a visa on the basis of a nomination made by Brajkovich Demolition & Salvage Pty Ltd Pty Ltd. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 21 September 2017.  

14. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 24 June 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

15. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.187.223(2).

16. Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

17. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that he meets the requirements of clause.187.223(2), the remaining criteria for the applicant should now be reconsidered. In addition, the application of the second named visa applicant should also now be reconsidered in full.

    DECISION

18. The Tribunal remits the applications 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.187.223(2) of Schedule 2 to the Regulations.

    Susan Reece Jones
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.