1505280 (Migration)

[2015] AATA 3175

1505280 (Migration) [2015] AATA 3175 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Reeta Karki
Mr Nabaraj Kharel

CASE NUMBER:  1505280

DIBP REFERENCE(S):  BCC2013/953721

MEMBER:Christopher Smolicz

DATE:24 July 2015

PLACE OF DECISION:  Adelaide

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 24 July 2015 at 2:07pm

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) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 30 June 2013. 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, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Residential Care Officer (ANZSCO 4117-15). The applicant was sponsored by Senses Foundation (Inc) (the sponsoring employer).

5. 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.

6. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination made by Senses Foundation Inc. was not approved.

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. 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).  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.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant was the nominator in the application for approval

   ·the nomination has been approved and has not been subsequently withdrawn

   ·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 30 June 2013 the sponsoring employer lodged a nomination for a residence visa under the Regional Employer Nomination (Permanent) (Class RN 187) visa in favour of the visa applicant.

11. On 6 November 2013 the sponsoring employer’s nomination application was refused by the Department.

12. On 24 July 2015, the Tribunal set aside the Department’s decision and substituted a decision approving the appointment for the position of Residential Care Officer (ANZSCO 4117-15). (see MRT file reference 1505397).

13. Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(4)(h)(ii) nomination application. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl. 187.233(1) is met.

14. The Tribunal relies on its findings in the nomination application to find the person who will employ the visa applicant is the person who was the nominator in the application for approval. Therefore cl. 187.233(2) is met. In light of the Tribunal’s approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.187.233(3).

15. The Tribunal is also satisfied on all the evidence before it that the relevant appointment has not been withdrawn and is still available to the visa applicant. Therefore cl.187.233(4) and (5) are met.

16. The application for the visa was made on 30 June 2013, which is before the nomination was approved on 24 July 2015. As the visa application was made on a date which is no more than 6 months after the approval, cl. 187.233 (6) is met.

17. The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.187.233. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa 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.

    Christopher Smolicz
    Member