RANIEL (Migration)

[2019] AATA 5343

RANIEL (Migration) [2019] AATA 5343 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PACA RANIEL

CASE NUMBER:  1715545

HOME AFFAIRS REFERENCE(S):          BCC2016/3563349

MEMBER:Andrew George

DATE:25 November 2019

PLACE OF DECISION:  Darwin

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.187.223 of Schedule 2 to the Regulations.

Statement made on 25 November 2019 at 11:39am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – subject of approved nomination – employer’s nomination application refused – refusal set aside on review – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223(2)

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 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 26 October 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Carpenter – 331212.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations principally because “On 11/05/2017 the nomination for Trade Building Supplies Pty Ltd was refused, at the time of decision Mr Raniel Paca did not meet 187.223(2) and therefore did not meet 187.223”.

6. The applicant appeared before the Tribunal on 24 September 2019 to give evidence and present arguments. This was a combined hearing with the visa nomination by Trade Building Supplies Pty Ltd in case number 1711706. Accordingly, the Tribunal also received evidence from Ms Jenny Treumer and Ms Melissa Treumer from Trade Building Supplies Pty Ltd.

7. Mr David Blades appeared at the hearing, instructed by Ms Hedvika Gibbs of Fragomen (Australia).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Licensing, registration and membership requirements

9. Clause 187.211 applies to all primary applicants if it is mandatory in the State or Territory where the nominated position is located to hold a licence, registration or membership of a professional body to undertake the tasks of a kind to be performed in the occupation to which the position relates. In these cases, the applicant must hold, or be eligible to hold such a licence, registration or membership at the time of the visa application.

10. There is no evidence before the Tribunal that an employed carpenter in Mr Paca’s position requires any form of licensing, registration, or membership in the Northern Territory. Therefore, cl.187.211 is not applicable.

    Employment will be provided

11. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application. The Tribunal notes its findings in paragraphs [16]-[19] of its decision in case number 1711706 of 23 November 2019. Therefore, cl.187.212 is met.

    Whether the applicant has engaged in conduct in contravention of the Act

12. An applicant meets cl.187.212A(a) if they have not, in the previous 3 years, engaged in conduct that constitutes a contravention of ss.245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act. In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or providing a benefit, in return for the occurrence of a sponsorship-related event. The meanings of ‘benefit’ and ‘sponsorship-related event’ in this context are provided under s.245AQ of the Act.

13. There is no evidence before the Tribunal that the applicant has engaged in conduct in contravention of the Act and therefore the Tribunal is satisfied that the requirements of cl.187.212A are met.

    Age requirements

14. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either meet certain age requirements, or be in a class of persons specified in the relevant legislative instrument: cl.187.221. In this case, as the visa application was made before 18 March 2018, the applicant must not have turned 50 at the time of application.

15. In the present case the applicant was born on 20 August 1977 and was therefore under the age of 50 in 2016. The age requirements in cl.187.221 are met.

    English language proficiency

16. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have defined level of English language proficiency, or be in a class of persons specified in a relevant legislative instrument: cl.187.222. For visa applications made before 1 July 2017 the level required is vocational English.

17. The Tribunal has disregarded any IELTS tests that are made after the date of application. However, the Tribunal notes the Don Bosco Training Center and University of Cebu records. From these records, the Tribunal accepts Ms Gibbs’ written submission regarding the applicant’s demonstrated vocational English on the basis of at least 5 years of his full time study in English in a secondary and/or higher education institution where the instruction was delivered in English. Therefore, cl.187.222 is met.

    Nomination of a position

18. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

19. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19)

    ·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.

20. The Tribunal is satisfied that the nomination was approved in case number 1711705 on 23 November 2019 and has not been subsequently withdrawn. In that matter the Tribunal found that there was ‘adverse information’ known to Immigration about Trade Building Supplies Pty Ltd. However the Tribunal also found it reasonable to disregard that information and it sees no reason to diverge from that approach in the present matter. The adverse information known to Immigration is therefore disregarded.

21. The nominated position is located in the Northern Territory, which is regional Australia. From its findings in the present matter and in case number 1711705, the Tribunal is satisfied that the position it is still available to the applicant.

22. The Tribunal notes that the nomination application was made on 26 October 2016 and approved on 23 November 2019. The present application was made on 26 October 2016, being no more than six months after the nomination of the position was approved.

23. Therefore, cl.187.223 is met.

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

    DECISION

25. 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.187.223 of Schedule 2 to the Regulations.

    Andrew George
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.