Saul (Migration)

[2022] AATA 3352

Saul (Migration) [2022] AATA 3352 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alexander Saul
Mrs CHARLYN SAUL
Ms KATHLENE GRACE SAUL
Mr CHARLES ALLEN SAUL

REPRESENTATIVE:  Ms CYRIL GABITO (MARN: 1383988)

CASE NUMBER:  1908051

HOME AFFAIRS REFERENCE(S):          BCC2017/2732049

MEMBER:Justin Meyer

DATE:12 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 12 August 2022 at 12.56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Metal Fabricator – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 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).

2. The applicants applied for the visas on 1 August 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 (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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Metal Fabricator.

5. The delegate refused to grant the visas because the applicant did not meet cl187.233(3) of Schedule 2 to the Regulations because (per the delegate’s decision):

   “On 15 January 2019 the nomination lodged by Ottoway Engineering Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection. … Since the appointment has been refused, clause 187.233(3) is not met.

   Consequently, I am not satisfied that the requirements of clause 187.233 have been met.

6. The applicants appeared before the Tribunal on 12 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Puya Gopal, who is an executive with the applicants’ employer.

7. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is the existence of a valid nomination.

   Nomination of a position

10. 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.

11. 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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in reg 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.

12. There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

13. The Tribunal on 12 August 2022 affirmed the decision under review to refuse the nomination made by Ottoway Engineering Pty Ltd. The applicant during questioning did not show that a nomination was in place.

14. Accordingly the requirements of cl.187.233 are not met.

    Secondary Applicants

15. The secondary applicants are members of the family unit of the applicant. As the secondary applicants are not member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of a visa, cl.187.311 is not satisfied.

16. As 187.311 is not satisfied by the secondary applicant, the Tribunal finds the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa are not satisfied.

17. Therefore the Tribunal refused the application by the secondary applicant for a Regional Sponsored Migration Scheme (subclass 187) visa.

18. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Justin Meyer
    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.