Merritt (Migration)

[2021] AATA 5609

Merritt (Migration) [2021] AATA 5609 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tahlia Elizabeth Merritt

CASE NUMBER:  1832458

HOME AFFAIRS REFERENCE(S):          BCC2017/4089285

MEMBER:Deputy President J.L Redfern PSM

DATE:5 November 2021

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 5 November 2021 at 3:45 PM

CATCHWORDS:

MIGRATION – Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – Direct Entry stream – Beef Cattle Farmer – whether subject of an approved nomination – decision under review remit with direction

LEGISLATION:

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Sch 2 cl 187.233

STATEMENT OF DECISION AND REASONS

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Tahlia Merritt, applied for the visa on 3 November 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The purpose of this visa is to assist businesses in regional, remote or low population growth areas, outside the major metropolitan centres of the major cities and regions, to recruit skilled workers to fill positions that are unable to be filled from the local labour market.[1]

   [1] Department of Home Affairs, PAM3 – Migration Regulations – Schedules – Regional Sponsored Migration Scheme - 4.1.

3. In the present case, Ms Merritt is making application for a permanent visa to work in the nominated position of Beef Cattle Farmer. She was nominated for this position by HC Pastoral Pty Ltd (HC Pastoral). HC Pastoral is one of the companies in a group, including a partnership, which operates an agricultural business in North-west and Central Queensland. The business has been established for at least 30 years and, under the current corporate structure, since 2012. The combined group currently has an annual turnover in excess of $5 million.

4. The delegate refused to approve HC Pastoral’s application for approval of the nominated position on 21 September 2018 and because this was an essential requirement for the grant of the subclass 187 visa, also refused Ms Merritt’s application. In short, the delegate found that Ms Merritt did not meet the relevant criteria in cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because HC Pastoral’s nomination for the position was not approved. The delegate refused the application on this basis alone and did not assess any of the other requirements for the visa.

5. HC Pastoral and Ms Merritt applied for review of the respective decisions to this Tribunal. Because the application for the employer nomination and the related visa application are linked as part of a two-stage process, both applications were listed for hearing on the same day. The application for review made by HC Pastoral (being matter no. 1829609) was scheduled first and the hearing of Ms Merritt’s review followed this hearing.

6. Ms Merritt appeared before the Tribunal on 22 September 2021. She gave oral evidence and was represented in relation to the review by her registered migration agent, who also represented HC Pastoral. Written evidence and submissions were provided prior to the hearing.

7. In the HC Pastoral proceedings, I found that HC Pastoral met all of the requirements for approval of the nomination in respect of Ms Merritt. I have therefore set aside the decision refusing the nomination and substituted a decision approving the nomination.

8. For the following reasons, have concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

9. The requirements for the grant of a regional sponsored migration visa are set out in Part 187 of Schedule 2 to 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. Ms Merritt is seeking a visa in the Direct Entry stream.

10. Relevantly, the delegate was not satisfied Ms Merritt met the requirements of cl 187.233 of Schedule 2 of the Regulations.

11. Clause 187.233 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. In this case, there is no dispute that these requirements have been met.

12. In addition, cl 187.233 also requires that:

    (1)the person who will employ the applicant is the person who made nomination (cl 187.233(2));

    (2)the nomination has been approved (cl 187.233(3)) and has not been subsequently withdrawn (cl 187.233(4));

    (3)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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information (cl 187.233(4A));

    (4)the position is still available to the applicant (cl 187.233(5)); and

    (5)the visa application was made no more than six months after the nomination of the position was approved (cl 187.233(6)).

    CONSIDERATION

13. The threshold issue in the present case, being the basis for the refusal of the visa, is whether the criteria set out in cl 187.233(3) is satisfied. In the related application by HC Pastoral I have approved the nomination for the position relating to Ms Merritt. Furthermore, there is no evidence that the nomination has been subsequently withdrawn. Relevantly, HC Pastoral has pursued the review of the decision not to approve the nomination and this continued to be the case up until the time of my decision in the related HC Pastoral proceedings. Accordingly, I find that the criteria in cls 187.233(3) and (4) are satisfied.

14. Because I have found that HC Pastoral meets the relevant requirements for approval, I have assessed the balance of the criteria for cl 187.233.

15. I find that HC Pastoral is the company employing Ms Merritt. In this regard, I rely on my findings in the HC proceedings.[2] There is no dispute that HC Pastoral made the nomination application. As such, I am satisfied that the criterion in cl 187.233(2) is met.

    [2] Matter no. 1829609.

16. There is no evidence that there is adverse information known to the Department, either about HC Pastoral or Ms Merritt. In this regard, I refer to my findings in relation to the related HC Pastoral proceedings and note that enquiries undertaken by me in respect of the Department of Home Affairs database known as the Integrated Client Services Environment (ICSE) records do not show that there is any adverse information recorded about Ms Merritt. The criterion in cl 187.233(4A) is therefore met.

17. Having regard to the evidence of Mr Clinton Hawkins, director of HC Pastoral in the related nomination proceedings, I am satisfied that the role currently being undertaken by Ms Merritt, which has been undertaken by her over the past three and a half years and is still available to her. As such, the criteria in cl 187.233(5) is met.

18. Finally, the application for the visa is still current and was not made more than six months after the nomination for the position has been approved, in satisfaction of the criteria in cl 187.233(6).

19. In conclusion, I find that the requirements of cl 187.233 of Schedule 2 of the Regulations are met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. 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 of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President

    
    
    

    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.