OCIEPA (Migration)

[2019] AATA 6312

OCIEPA (Migration) [2019] AATA 6312 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Katarzyna Wioletta OCIEPA
Celina Katarzyna OCIEPA
Nikodem Wieslaw OCIEPA

CASE NUMBER:  1825385

HOME AFFAIRS REFERENCE:               BCC2018/589521

MEMBER:Lilly Mojsin

DATE:19 December 2019

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.187.223 of Schedule 2 to the Regulations;

Statement made on 19 December 2019 at 10:25am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Dental Technician – subject of an approved nomination – nomination now approved by the Tribunal – 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 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 4 February 2018. 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 review, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Dental Technician, (ANZSCO: 411213).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 cl.187.233(3) of Schedule 2 to the Regulations because the nomination lodged by A & T Dental Services Pty Ltd ACN 146 382 765 was not approved.

6. The applicants appeared before the Tribunal on 5 December 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. On 6 December 2019, the Tribunal approved the related nomination of A & T Dental Services Pty Ltd ACN 146 382 765. The person who will employ the applicant, A & T Dental Services Pty Ltd ACN as trustee for the A & T Family Trust, trading as Shoalhaven Dental Laboratory, is the person who made nomination. The nomination has not been withdrawn.

11. The Tribunal is not aware of any 'adverse information' known to the Department about the person who made the nomination or a person 'associated with' that person. The position is located in Bomaderry NSW postcode 2541. The postcode is 2541 which is in regional NSW as defined in r.5.19.

12. The position is still available to the applicant and, the visa application was made prior to the approval of the nomination.

13. The Tribunal finds cl.187.223 has been met.

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. 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 of Schedule 2 to the Regulations

    Lilly Mojsin
    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.