Thompson (Migration)

[2019] AATA 5462

Thompson (Migration) [2019] AATA 5462 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Danny Thompson
Mrs Lucinda Thompson
Mr Liam Frederick Thompson
Miss Danielle Thompson

CASE NUMBER:  1703775

DIBP REFERENCE(S):  BCC2016/2473163

MEMBER:Nicola Findson

DATE:4 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

·cl.187.211 of Schedule 2 to the Regulations

Statement made on 04 December 2019 at 11:49am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – licence, registration or membership of particular professional body – licence not held at time of application, but applicant eligible – licencing process took longer than anticipated – licence subsequently issued – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.211

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 July 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 for Auction Services WA Pty Ltd in the nominated position of Auctioneer (ANZSCO 611111).

5. The delegate refused to grant the visas on 17 February 2017. The delegate was not satisfied that the applicant met cl.187.211 of Schedule 2 to the Regulations, because he had not demonstrated he held a licence, registration, or was a member of a particular professional body, to perform the tasks of the kind to be performed in the occupation to which the position relates, or that he is eligible to hold a licence or registration or become a member of a particular professional body relating to the occupation.

6. On 3 March 2017, the applicants applied to the Tribunal for a review of the delegate’s decision. The applicants provided to the Tribunal a copy of the delegate’s decision for the purpose of the review.  Information concerning the eligibility requirements for a General Auctioneer’s licence, as well as a copy of a licence issued to the applicant on 28 February 2018, by a Magistrate of the Fremantle Court under the Auction Sales Act (WA) 1973, also accompanied the review application.

7. During the review process, the applicants provided the Tribunal with the following information:

   ·A copy of an application for a General Licence under the Auction Sales Act 1973 dated 11 November 2016, which states that the application will be heard before the Fremantle Court on 28 February 2017. 

   ·A copy of a paid invoice in respect of the licence application fee in the amount of $179 dated 25 January 2017

   ·A South African Police Service Clearance Certificate dated 30 March 2016

   ·Character reference letters in support of the applicant from:

   oMr Anton Zackey, Business Development Manager of Goals International Pty Ltd, dated 18 January 2017

   oMr Darren Berley, Real Estate Auctioneer of Realmark South Pty Ltd, dated 17 January 2017

   oMr Ryan Thompson, Managing Director and Auctioneer of Auction services WA Pty Ltd, dated 16 December 2016

8. A submission from the applicant was also provided to the Tribunal.  The submission states that although the applicant did not hold a Western Australian Auctioneer’s licence at the time he applied for his visa, he was eligible to become the holder of this licence, in accordance with cl.187.211.  It is submitted that a General Auctioneer’s Licence is granted by a Magistrate, and to be eligible for the Licence you must:

   ·Obtain three character references

   ·Be at least 18 years of age

   ·Be a fit and proper person

   ·Pay the prescribed fee

9. It is submitted that because an Auctioneer’s Licence is only valid for 12 months, and at the time of visa application the applicant had not yet commenced employment with his nominating employer (his contract stipulates his employment is linked to his successful visa outcome), this is the reason the applicant had not applied sooner for the relevant licence. 

10. It is submitted that in addition to meeting the requirements for an Auctioneer’s Licence, the applicant has over 20 years’ experience as an auctioneer as well as experience as an owner and Director of an auctioneering business in South Africa.

11. The submission sets out that when the delegate invited the applicant to provide evidence of holding the relevant licence, an application was made to the Fremantle Court.  However, the process took significantly longer than anticipated, and therefore the applicant was unable to provide the Department with evidence that he held the required licence within the prescribed period.  The submission confirms that a General Auctioneer’s Licence was ultimately issued to the applicant and this fact in itself indicates that he was eligible for the licence.

12. In light of the new evidence received, including the submission of the applicant which is accepted, the Tribunal is satisfied that at the time of application the applicant was eligible to become the holder of a licence to perform tasks of the kind to be performed in the occupation to which the nominated position relates, and that cl.187.211 is therefore met.

13. The Tribunal has concluded that the matter should be remitted for reconsideration.

    DECISION

14. The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

    ·cl.187.211 of Schedule 2 to the Regulations

    Nicola Findson
    Member