O'Connell (Migration)

[2018] AATA 2042

O'Connell (Migration) [2018] AATA 2042 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Toni O'Connell

CASE NUMBER:  1715883

DIBP REFERENCE(S):  BCC2016/1572128

MEMBER:Kate Timbs

DATE:16 April 2018

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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa in clause 187.233(3).

Statement made on 16 April 2018 at 11:39am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) –Subclass 187 – Direct Entry Nomination stream – Nomination approved – cl 187.233 – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 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 Immigration and Border Protection to refuse to grant Ms O’Connell a Regional Employer Nomination (Permanent) (Class RN) visa under section 65 of the Migration Act 1958 (the Act).

2. Ms O’Connell applied for the visa on 27 April 2016 on the basis of a nomination by Globies Pty Ltd (the company) of a position in the Direct Entry Stream under regulation 5.19(4) of the Migration Regulations 1994 (the Regulations). On 13 July 2017, the delegate refused to grant the visa.

3. On 21 July 2017, Ms O’Connell applied for review of that decision. The Tribunal heard the application for review on 19 March 2018.

   Relevant law and matters for the Tribunal to determine

4. To be granted the visa, Ms O’Connell must meet the relevant criteria in Part 187 of Schedule 2 to the Regulations. The delegate found Ms O’Connell did not meet the criterion in clause 187.233(3), which requires that the Minister has approved the nomination of a position to which the visa application relates under regulation 5.19(4).

5. To deal with Ms O’Connell’s application for review, the Tribunal considered whether that is the case at the time of this decision.

   Consideration and evidence

6. Delegates of the Minister refused to approve nominations by the company of the position to which the visa application relates on 7 April 2016 and 14 June 2017. The company applied for review of both decisions.

7. On 14 April 2018, the Tribunal set aside those decisions and substituted decisions to approve the nominations. The Tribunal, in place of the Minister, has approved the nomination of a position to which the visa application relates and therefore Ms O’Connell satisfies clause 187.233(3). The Tribunal will set aside the decision for that reason and remit the visa application for reconsideration by the Minister. The Department will then consider whether Ms O’Connell meets the other criteria for the visa and decide whether to grant the visa.

   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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa in clause 187.233(3).

   Kate Timbs
   Member