SILVA DE AZEVEDO (Migration)

[2018] AATA 3432

SILVA DE AZEVEDO (Migration) [2018] AATA 3432 (27 July 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms CAROLINA SILVA DE AZEVEDO

CASE NUMBER:  1701015

DIBP REFERENCE(S):  BCC2016/2179548

MEMBER:  Alan McMurran

DATE:  27 July 2018

PLACE OF DECISION:  Sydney

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

·cl.187.233 of Schedule 2 to the Regulations;

Statement made on 27 July 2018 at 3.40pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 27 June 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Diversional Therapist, ANZSCO 411311. 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.

1. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations, as the Minister had not approved the nomination.

1. The applicant was represented in relation to the review by her registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets subclause 187.233 of the Regulations in Schedule 2.

Nomination of a position

1. 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).

1. 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19 (4)(a)(ii).

1. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the 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.

Nomination Approval

1. On 19 July 2018, the Tribunal considered on review an application for approval of a nomination[1] for the position of diversional therapist, with the applicant identified as the nominee.

   [1] Tribunal case file 1619565; DIBP file BCC 16/1265463

1. The Tribunal made a decision to set aside the decision under review and substitute a decision approving the nomination.

1. Consequently, the Tribunal finds that the applicant meets the criteria in the subregulation 187.233(3) that the Minister has approved the nomination.

Cl 187.233 Criteria

1. The Tribunal is further required to consider the remainder of the criteria set out in regulation

   187. 233 and as referred to above.

1. The Tribunal finds on the information before it, which includes the Tribunal’s file and the Department’s file[2] as follows:

   [2] Tribunal case file 1701015 and BCC 2016/2179548

1. the position to which the application relates is a position nominated in an application that meets the requirements of subparagraph 5.19(4)(h)(ii)

1. the nominator, The Trustee for Clear Health Trust, is a person who will employ the applicant and is a person who made the nomination

1. (as found above) the Minister has now approved the nomination

1. the nomination has not subsequently been withdrawn, and the Tribunal is not aware of any adverse information known about the nominator or any person associated with the nominator

1. the position of diversional therapist is still available to the applicant, and

1. the application for the Visa was made no more than 6 months following the approval by the Minister of the nomination.

1. Therefore, cl.187.233 is met.

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

DECISION

1. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl.187.233 of Schedule 2 to the Regulations;

Alan McMurran Member