Rinopa (Migration)

[2020] AATA 407

Rinopa (Migration) [2020] AATA 407 (14 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sheryl Mae Rinopa
Master Yuan Nigel Rabena Rinopa

CASE NUMBER:  1808474

HOME AFFAIRS REFERENCE(S):          BCC2017/2593576

MEMBER:Alan McMurran

DATE:14 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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 of Schedule 2 to the Regulations;

The Tribunal has no jurisdiction in respect of the secondary applicant.

Statement made on 14 February 2020 at 12:36pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s position nomination refused – refusal set aside on review – second applicant offshore at time of application – decision under review remitted for first applicant, no jurisdiction for second applicant

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 27 March 2018 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 (the Act).

2. The applicants applied for the visas on 21 July 2017. 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 (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Child Care Group Leader (ANZSCO 421111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because the nomination submitted to the Department by Alcheringa Enterprises Pty Ltd was not approved.

6. The applicants appeared before the Tribunal on Thursday, 13 February 2020 in a combined hearing with a review of the nomination application, to give evidence and present arguments. The Tribunal received oral evidence from the applicant, appearing by video link from the Tribunal’s Canberra office, and from a director of the nominator, Gwynn Bridge, who appeared by telephone from her office in Queensland.

7. The applicants were represented in relation to the review by their registered migration agent, who also appeared by telephone for the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

   Nomination of a position

10. 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.

11. 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.

12. On 14 February 2020, the Tribunal made findings and a decision in an application by the nominator for review of a refusal by the Department of the nomination application.[1]

    [1] Tribunal case file 1718827

13. Having considered the application, the Tribunal made an order setting aside the decision under review and substituting a decision approving the nomination.

14. The Tribunal has considered the information presented by the applicants, together with the information contained in the Department’s nomination file[2] and the Department’s case file in these proceedings.[3] The Tribunal has also had regard to the post hearing submissions provided by the representative concerning the applicant’s employment.[4]

    [2] BCC 2017/2314206

    [3] BCC 2017 2593576

    [4] dated 12 and 13 February 2020 in Tribunal case file 1718827

15. The Tribunal finds it is satisfied the nominator is the person who will employ the applicant in the position nominated of Child Care Group Leader, at the location in Canberra specified by the nominator.

16. The Tribunal finds that the nomination has now been approved and has not subsequently been withdrawn, and there is no adverse information known to Immigration (now the Department of Home Affairs) or the Tribunal about the entity which made the nomination application, or its directors, or a person associated with those persons. The Tribunal finds on the evidence the nominated position is still available to the applicant and the visa application was made within the requisite period.

17. Therefore, cl.187.233 is met.

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

    Secondary Applicant

19. The Tribunal notes that the secondary applicant is the 8 year old son of the primary visa applicant, and currently residing in the Philippines with his grandparents, pending the outcome of this visa application.

20. The secondary applicant has been offshore at all times and has remained offshore at the time of application. The Tribunal has no jurisdiction in respect of the secondary applicant.

    DECISION

21. 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 of Schedule 2 to the Regulations;

    The Tribunal has no jurisdiction in respect of the secondary applicant.

    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 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.