Tonelli (Migration)

[2019] AATA 5617

Tonelli (Migration) [2019] AATA 5617 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Tonelli

CASE NUMBER:  1715646

HOME AFFAIRS REFERENCE(S):          BCC2016/3317176

MEMBER:Mr S Norman

DATE:17 September 2019

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(1) & (3) of Schedule 2 to the Regulations

Statement made on 17 September 2019 at 2:08pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Caravan Park and Camping Ground Manager – nomination approved upon review – 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 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). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 6 October 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Caravan Park and Camping Ground Manager (ANZSCO: 141211).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(1) of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 11 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Angela Morgan (authorised to speak for the applicant’s nominator). The applicant was represented in relation to the review by his registered migration agent.

7. 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

8. 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

9. 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.

10. On 6 October 2016, the nominator (PAMS & Co Pty Ltd ATF The Trustee for The Morgan Family Trust) lodged the related nomination in the Direct Entry Stream. The nominated occupation was for a Caravan Park and Camping Ground Manager (ANZSCO: 141211) – in Tully, QLD; and the visa applicant (the applicant) was Thomas TONELLI. The nominator advised that the applicant would be employed full-time in the position for at least two years; and that the total remuneration package for the nominated position was $54,549 – and the base salary was $49,816 (for 38 hours per week[1]).

    [1] Department – folio 27.

11. On 30 May 2017, the Department delegate issued a “natural justice letter” inviting the applicant to comment with respect to the refusal of the nomination application. In the applicant’s response, they indicated the sponsor had “lodged an appeal” to the Tribunal; and they did not propose to withdraw the Subclass 187 visa application. The delegate then found the applicant had not met cl.187.233(1); and had therefore not met cl.187.233. The delegate then considered the other visa streams that concluded the applicant had not met the criteria for same. The delegate then refused to grant the applicant’s Subclass 187 visa.

12. The Tribunal notes the nomination approval application related to this case, has been approved on 17 September 2019 (see Tribunal decision - AAT # 1712608), and therefore the applicant satisfies this criteria for the visa. Based on the findings and evidence in AAT # 1712608, the Tribunal notes the person who will employ the applicant is the person who made the nomination; that the nomination has been approved and has not been subsequently withdrawn; that 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); that the position is still available to the visa applicant (and he has worked in the position for almost three years); and that the visa application was made no more than six months after the nomination of the position was approved (the visa application was made 6 October 2016 - the nomination was approved 17 September 2019). Be that as it may, the Tribunal finds that cl.187.233(1) & (3) are met.

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

    DECISION

14. 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(1) & (3) of Schedule 2 to the Regulations

    Mr S Norman
    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.