Rattenberry (Migration)

[2017] AATA 766

Rattenberry (Migration) [2017] AATA 766 (27 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andrew Rattenberry
Miss Sarah Parsley

CASE NUMBER:  1607961

DIBP REFERENCE(S):  BCC2015/2624241

MEMBER:Glen Cranwell

DATE:27 April 2017

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 27 April 2017 at 3:37pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – Approved nomination

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl.187.233, r 5.19, r 1.13A, r 1.13B

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 9 September 2015. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager. 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 visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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 27 April 2017, the Tribunal set aside a decision of the Department and substituted a decision approving the nomination of the applicant by FN 63 Pigs Pty Ltd.

11. Therefore, cl.187.233(3) is met.

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

    DECISION

13. 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.187.233(3) of Schedule 2 to the Regulations.

    Glen Cranwell
    Member