PERRONIER (Migration)

[2017] AATA 2459

PERRONIER (Migration) [2017] AATA 2459 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xavier PERRONIER

CASE NUMBER:  1712547

DIBP REFERENCE(S):  BCC2016/3091596

MEMBER:Antoinette Younes

DATE:22 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 22 November 2017 at 4:01pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position – Sales and Marketing Manager – Employer nomination refused

LEGISLATION
Migration Act 1958 ss 65, 359AA
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19(4) , 5.19(4)(a)(ii), 5.19(4)(h)(ii), Schedule 2 cls 187.233, 187.233(1), 187.223(3)

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 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 to the Department of Immigration for the visa on 17 September 2016. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing Manager - 131112. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223(3) of Schedule 2 to the Regulations because the relevant nomination had been refused.

6. The applicant appeared before the Tribunal on 22 November 2017 to give evidence and present arguments

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is cl.187.233.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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.

11. In accordance with s.359AA, in the course of the hearing, the Tribunal indicated to the applicant that there is information that on 19 April 2017, the nomination lodged by Urban Stays Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by the delegate. The Tribunal indicated that this means that as the nomination had been refused, he does not meet cl.187.233(3) which requires the nomination to be approved.  The applicant was not represented and he asked for clarifications about the reasons for the refusal which the Tribunal explained.

12. On the evidence before it, the Tribunal finds that cl.187.233(3) is not met and it follows that cl.187.233 is not met.

13. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Antoinette Younes

    
    Senior Member