Siblag (Migration)

[2019] AATA 5059

Siblag (Migration) [2019] AATA 5059 (25 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Carlo Clifford Maniago Siblag
Mrs Mary Ann Sumat Siblag
Master Carlo Clifford JR Sumat Siblag
Miss Naiana Chloie Sumat Siblag
Master Evo Yann Carlo Sumat Siblag

CASE NUMBER:  1728940

HOME AFFAIRS REFERENCE(S):           BCC2017/1814611

MEMBER:Phoebe Dunn

DATE:25 October 2019

PLACE OF DECISION:  Melbourne

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.187.223(2) of Schedule 2 to the Regulations

Statement made on 25 October 2019 at 4:43pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – nomination refused – nomination approved upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (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 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 22 May 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 Temporary Residence Transition stream, to work in the nominated position of ‘Vehicle Trimmer’ (ANZSCO 324212).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations because the related nomination lodged by Dutchy’s Trim Shop Pty Ltd, being the nomination referred to in cl.187.223(1), was refused by a delegate of the Minister for Immigration and Border Protection on 29 September 2017.

6. The applicants were represented in relation to the review by their registered migration agents, Ms Daniella Ion and Patricia Sinclair.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the nomination made in respect of the applicant’s Subclass 187 visa application has been approved.

   Nomination of a position

9. 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.

10. 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 of the Regulations); or it is reasonable to disregard any such information;

    ·the position is located in regional Australia (as defined in r.5.19 of the Regulations);

    ·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.

11. The applicant applied for the visa on the basis of the nomination made by Dutchy’s Trim Shop Pty Ltd (the nominator) on 15 May 2017 for the position of Vehicle Trimmer (ANZSCO 324212).  The nomination identified the application as the relevant Subclass 457 visa holder in respect of which the relevant declaration was made.  The nomination was refused by the Department of Immigration on 29 September 2017.

12. The nominator applied to the Tribunal for review of that decision.  On 23 October 2019, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.  As the relevant nomination in respect of the primary visa applicant has been approved, the applicant meets the requirements of cl.187.223(2).

13. The applicant has been working full-time in the nominated position since 23 March 2015, and continues to do so.  As such, the Tribunal is satisfied that the position is still available to the applicant. The Tribunal is also satisfied that the visa application was made within six months of the approval of the nomination of the position. The business is located in Geraldton, Western Australia, which is defined as a regional location for the purposes of r.5.19 of the Regulations.

14. There is no evidence before the Tribunal to suggest that there is any relevant adverse information known to the Department. The Tribunal is satisfied there is no adverse information known to Immigration about the nominator or a person associated with the nominator.

15. Therefore, cl.187.223 is met.

16. The delegate made a decision that the second, third, fourth and fifth named applicants did not satisfy cl.187.311, which requires that they are a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having made a valid combined application with the primary applicant.

17. The Tribunal is unable to make a direction that the second, third, fourth and fifth named applicants meet this criterion, because at the time of the Tribunal’s decision, the first named applicant does not hold a Subclass 187 visa.  The Tribunal refers the case of the second, third, fourth and fifth named applicants to the Department to consider their applications afresh.

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

    DECISION

19. 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.187.223(2) of Schedule 2 to the Regulations.

    Phoebe Dunn
    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.