MELLING (Migration)

[2020] AATA 3925

MELLING (Migration) [2020] AATA 3925 (27 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr David MELLING
Ms Alexandra Jane Allen

CASE NUMBER:  1803727

HOME AFFAIRS REFERENCE(S):          BCC2017/1213139

MEMBER:Karen McNamara

DATE:27 July 2020

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations

·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

Statement made on 27 July 2020 at 10:51am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Travel Agency Manager – approved nomination – position is still available to the applicant –subject of an approved nomination – no jurisdiction to the second named applicant –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13,5.19, 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 Home Affairs (the delegate) 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 30 March 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 Mr David Melling (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Travel Agency Manager (ANZSCO 142116).

5. The delegate’s decision record dated 29 January 2018, states that on 12 December 2017 the nomination lodged by P&M Adventure Travel Pty Ltd was refused by a delegate of the Minister for Immigration and Border Protection. As the nomination application had been refused, the delegate found that the applicant did not meet cl.187.233(3) and as a result, the applicant did not meet cl.187.233.

6. On 23 June 2020, the applicant appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Phil Bettley (the nominator) and Mr Matt Dowling (Company Director) in the related matter for the nomination application (AAT Case file 1732317). The related matters were heard concurrently in a combined hearing.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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.187.233(3).

    Nomination of a position

11. 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.

12. 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.

13. The nominating employer, P&M Adventure Travel Pty Ltd applied to the Department of Immigration and Border Protection for approval of a nomination in relation to the position of Travel Agency Manager (ANZSCO 142116). That nomination was refused by the Department and consequently the applicants visa applications were refused.

14. P&M Adventure Travel Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1732317). On 27 July 2020, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

    Jurisdiction in relation to the second named applicant

15. On 1 June 2020 the applicant’s authorised representative advised the Tribunal by way of email that the applicant sought to have Ms Alexandra Jane Allen (the second named applicant) removed from his visa application.

16. At the hearing of 23 June 2020, the applicant told the Tribunal that the second named applicant was no longer in a relationship with the applicant and as such he wished her removed from his application. On 29 June 2020 the Tribunal received a completed and signed Withdrawal of Application for Migration or Refugee review – MR Division form, from Ms Alexandra Jane Allen.

17. As such the Tribunal accepts the withdrawal application form signed and dated by Ms Alexandra Jane Allen on 25 June 2020 and accordingly, the Tribunal does not have jurisdiction in relation to the second named applicant.

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) 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(3) of Schedule 2 to the Regulations

    ·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

    Karen McNamara
    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.