Murphy (Migration)

[2020] AATA 1188

Murphy (Migration) [2020] AATA 1188 (12 March 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Katherine Laura Murphy

CASE NUMBER:  1807863

DIBP REFERENCE(S):  BCC2017/3568437

MEMBER:Warren Stooke AM

DATE OF DECISION:  12 March 2020

DATE CORRIGENDUM

SIGNED:16 April 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The date “12 March 2019” on the first page of the Decision Record should read  “12 March 2020”.

Warren Stooke AM
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Katherine Laura Murphy

CASE NUMBER:  1807863

HOME AFFAIRS REFERENCE(S):          BCC2017/3568437

MEMBER:Warren Stooke AM

DATE:12 March 2019

PLACE OF DECISION:  Melbourne

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 12 March 2020 at 9:43am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Dive Instructor (Open Water) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 September 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Dive Instructor (Open Water) – ANZSCO Code: 452311.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nominating sponsor’s application pursuant to cl.187.233 (3) was not met.

6. The applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sheppard, a director with the applicant’s nominating sponsor’s business.

7. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Dive Instructor (Open Water) – ANZSCO Code: 452311.

10. The applicant submitted that the ANZSCO Code: 452311 Diving Instructor (Open Water) is the appropriate occupation that is being nominated by the standard business sponsor, which has the descriptor, as follows:

    Diving Instructor (Open Water) - ANZSCO 452311

    Description

    Trains and instructs recreational or commercial open water divers in diving techniques, safety and the correct use of diving equipment. Registration or licensing is required.

    Skill Level 3

    Note: some roles within this occupation are at ANZSCO Skill Level 2

    Specialisations

    ·     Dive Master

    ·     Scuba Instructor

    ·     Snorkelling Instructor

    ·     Surface Supply Breathing Apparatus (SSBA) Instructor

    Skills Assessment Authority

    VETASSESS

    Caveats

    No caveats apply to this occupation.

11. The applicant gave evidence that she arrived in Australia in September 2015 and at the time she was the holder of a Working Holiday visa and that for the last two and a half years she has been engaged full-time by the business, with whom she is employed.

12. The applicant confirmed in evidence that she has a Bachelor of Science (Hons) from Portsmouth University in the UK and a major in Environmental Science (Marine Conservation). [Case Matter: 1804681 in Tribunal File: Folios 123-125]

13. In addition, the applicant has a contract of employment that provides for at least two years full-time employment and the option by mutual agreement to work beyond this period.

    Nomination of a position

14. 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.

15. 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.

16. The Tribunal, as presently constituted, in Case Matter: 1804681 concerning the sponsor of the applicant by Dive Ningaloo Exmouth Pty Ltd (ATF Exmouth Navy Pier Trust) set aside the decision under review and substituted a decision approving the nomination.

17. On the basis that the Tribunal is satisfied that the applicant has an approved standard business sponsor, it follows that the applicant’s nomination in this case should be approved.

18. Therefore, cl.187.233 is met.

19. 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.

    Warren Stooke AM
    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

    (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.