Spreafico (Migration)

[2019] AATA 4266

Spreafico (Migration) [2019] AATA 4266 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Valeria Spreafico
Mr Ryan Edward Acock

CASE NUMBER:  1802944

HOME AFFAIRS REFERENCE(S):           BCC2016/2221651

MEMBER:Sheridan Lee

DATE:23 August 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.187.233 of Schedule 2 to the Regulations.

Statement made on 23 August 2019 at 10:45am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Retail Manager – approved nomination – position is still available to the applicant –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187. 233

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 (the Act).

2. The applicants applied for the visas on 30 June 2016. 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 Retail Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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.

8. 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.

9. The position to which the application relates is the position of Retail Manager at a café located in Geraldton, Western Australia, which was nominated in an application made by Anti Slip WA Pty Ltd. The position is located in regional Australia and was the subject of the declaration made as part of the current visa application.

10. The nomination application lodged by Anti Slip WA was originally refused by a delegate of the Minister on 19 December 2017. However, on 23 August 2019 the Tribunal set aside the delegate’s decision and substituted it with a decision approving the nomination.

11. Having reviewed the current visa application and the nomination application submitted by Anti Slip WA, the Tribunal is satisfied that:

    ·Anti Slip WA made the nomination and will employ the nominee

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no adverse information located on either the Department or Tribunal records

    ·the position is still available to the applicant, and

    ·the visa application was made on the same day as the nomination application and therefore no more than six months after the nomination of the position was approved.

12. 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.

13. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, his application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

14. 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 of Schedule 2 to the Regulations.

    Sheridan Lee
    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.