Rayner (Migration)

Rayner (Migration) [2022] AATA 909 (22 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Kathleen Stephanie Rayner
Mr Gavin Gerard Duffy
REPRESENTATIVE:  Mr Scott Walker (MARN: 1067594)
CASE NUMBER:  2001185
HOME AFFAIRS REFERENCE(S):          BCC2019/5711808
MEMBER:Alan McMurran
DATE:22 April 2022
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 187.233(3) of Schedule 2 to the Regulations; and
·cl 187.233 of Schedule 2 to the Regulations.

The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl 187.311

Statement made on 22 April 2022 at 9:56am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – contract administrator – subject of approved position nomination – related nomination application refused – joint hearing with nominator’s application for review – refusal of nomination set aside – reasonable to disregard adverse information about nominator – past sanctions and monitoring but no current concerns – applicant currently employed in role – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), (4A), 187.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 (Cth) (the Act).
The applicants applied for the visas on 12 November 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).The second named applicant is a member of the primary applicant’s family unit.
The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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 Contract Administrator.
The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because a nomination by the applicant’s sponsor, TRAFFIC WERX NT Pty Ltd, was refused by the Department on 8 December 2019.
On 14 April 2022, the applicant attended a combined hearing by the Tribunal with the nominator’s application for review, to give evidence and present arguments.
The Tribunal also received oral evidence from Mr C Boyer, director of the nominator. The hearing was conducted virtually, using MS teams for audio and video recording. This was deemed to be the most efficient means of conducting the hearing in order to meet the Tribunal’s statutory objective, without creating further delays and noting the process was accepted by the parties and their representative. Both parties indicated they were ready and willing to proceed.
The applicant and the nominee were represented in relation to the review by the same representative migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the subject of an approved nomination under cl.187.233 for a visa in the Direct Entry stream.
The second named applicant for the visa depends upon the granting of the application by the primary applicant.
Nomination of a position
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.
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 reg 1.13A and reg 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.
On the available information and following the combined hearing, the Tribunal finds that the person who will employ the applicant is the person who made the nomination, TRAFFIC WERX NT Pty Ltd.
The nomination has not been withdrawn.
On 22 April 2022, the Tribunal approved the nomination application on review. Accordingly, the Tribunal finds that the applicant now meets cl 187.233(3).
The Tribunal discussed the issue of ‘adverse information’ with the witnesses at hearing. The Tribunal found that although there was a history of past sanctions and monitoring of the nominator by the Department, there was no detail available about the history dating back to 2014-2016 and no information available from the Department raising any current concerns.
For reasons provided in the nominator’s case[1], which are not repeated here, the Tribunal found it was reasonable to disregard any such information. Accordingly, cl 187.233(4A) is met.
[1] T case number 1936129
The Tribunal finds that the evidence shows the position is still available to the nominee who is currently employed in the role, and the visa application was made no more than six months after the nomination of the position was approved.
Conclusion
Therefore, cl 187.233 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
Second named applicant
The applicant has given evidence about her relationship with the second named applicant. There is no information before the Tribunal that the parties are not together in the primary applicant’s family unit.
The Tribunal finds that the second named applicant is a member of the family unit of the primary applicant, has lodged a combined application with the primary applicant, and meets cl. 187.311.
DECISION
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; and
·cl 187.233 of Schedule 2 to the Regulations.
The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·     cl 187.311
Alan McMurran
Member

ATTACHMENT A
187.233(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Direct Entry stream; and
(iii)seeks to meet the requirements of subregulation 5.19(12); 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.

[2022] AATA 909

22 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal