Pironi Yaghdjian (Migration)

[2019] AATA 1288

Pironi Yaghdjian (Migration) [2019] AATA 1288 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nathalia Pironi Yaghdjian
Mr Levon Movses Yaghdjian
Master Gabriel Pironi Yaghdjian
Miss Maria Eduarda Pironi Yaghdjian

CASE NUMBER:  1621767

HOME AFFAIRS REFERENCE(S):           BCC2016/762284

MEMBER:Susan Trotter

DATE:14 January 2019

PLACE OF DECISION:  Brisbane

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.187.233(3) of Schedule 2 to the Regulations.

Statement made on 14 January 2019 at 4:40pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Corporate Services Manager – nomination refused – decision set aside – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 on 24 October 2016 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 23 February 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first-named applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate Services Manager for LYNP Projects & Constructions Pty Ltd.

5. The delegate refused to grant the visas on the basis that the first-named applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination application by LYNP Projects & Constructions Pty Ltd had been refused on 24 October 2016 and that accordingly the first-named applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole as required.

6. The delegate also found that the other applicants (identified as the first-named applicant’s husband and children in the visa application) could not be granted a Subclass 187 visa, as they did not meet the secondary visa criteria (cl.187.311) requiring them each to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

7. The first-named applicant lodged an application for review of the delegate’s decision with the Tribunal on 19 December 2016.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear before the Tribunal.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Clause 187.233(3) is one of the essential criteria that must be met. It requires that the position to which the application relates is the subject of an application for approval of a nomination, which nomination has been approved.

13. Records of the Department of Home Affairs[1] (the Department) indicate that the first-named applicant’s employer, LYNP Projects & Constructions Pty Ltd made an application to have the position of Corporate Services Manager approved, with the first-named applicant as the nominee, with the Department on 19 February 2016. The nomination application was refused on 24 October 2016 and LYNP Projects & Constructions Pty Ltd sought review of that decision with the Tribunal on 8 November 2016.

    [1] Previously the Department of Immigration and Border Protection

14. On 14 January 2019, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by LYNP Projects & Constructions Pty Ltd.

15. Therefore, cl.187.233(3) is now met.

16. As the secondary applicant applied on the basis that they are each a member of the family unit of the first-named applicant, their applications will be determined by reference to the outcome of the first-named applicant's application on remittal to the Department for reconsideration.

    Conclusion

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

18. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction - Conducting Migration and Refugee Reviews (30 June 2015), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    DECISION

19. 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.187.233(3) of Schedule 2 to the Regulations.

    ATTACHMENT

    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

    (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.