1412263 (Migration)

[2015] AATA 3708

1412263 (Migration) [2015] AATA 3708 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Madhu Thapa Pulami
Ms Panu Pun

CASE NUMBER:  1412263

DIBP REFERENCE(S):  BCC2014/774452

MEMBER:Katie Malyon

DATE:17 November 2015

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations

Statement made on 17 November 2015 at 3:41pm

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

2. Mr Madhu Thapa Pulami, a national of Nepal, applied to the Department of Immigration for the visa on 18 March 2014.  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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, Madhu Thapa Pulami is seeking the visa in the Direct Entry stream.  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.

5. The delegate refused to grant the visa because Madhu Thapa Pulami did not meet cl.187.233(3) of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 17 November 2015, the Tribunal approved the nomination of Madhu Thapa Pulami under r.5.19(4) of the Regulations made by Mr Mohamed Khattab trading as Dahab Cafe. Accordingly, cl.186.233(3) of Schedule 2 of the Regulations is met.

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

   DECISION

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

   ·cl.187.233(3) of Schedule 2 to the Regulations.

   Katie Malyon

   
   Member