BHANDARI (Migration)

[2017] AATA 189

BHANDARI (Migration) [2017] AATA 189 (25 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rojendra BHANDARI
Ms Sandhya Subedi

CASE NUMBER:  1603553

DIBP REFERENCE(S):  BCC2015/2308794

MEMBER:Christopher Smolicz

DATE:25 January 2017

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 25 January 2017 at 11:44am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – No previous approved nomination – Nomination now approved - relevant appointment has not been withdrawn – Visa application made before nomination approval

LEGISLATION

Migration Act 1958,

Migration Regulations 1994

, Schedule 2 cl 187.233(1), (2), (3), (4), (5), (6), r 1.13A, r 1.13B, r 5.19(4), r 5.19(4)(h)(ii)

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 11 August 2015. 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 Retail Manager (General) 142111. The nomination application was lodged by the sponsoring employer Santoso and Chen Pty Ltd.

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(2) of Schedule 2 to the Regulations because nomination 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

8. The issue in the present case is whether the nomination has been approved.

   Nomination of a position

9. 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.

10. 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.

11. On 1 August 2015 Santoso and Chen Pty Ltd applied to the Department for approval of the nomination of the position of Retail Manager (General).

12. On 22 February 2016, the Department refused the sponsoring employers application for approval of the nomination. Consequently, on 3 March 2016 the Department refused the applicant's visa application on the basis that, as there was no approved nomination and he did not satisfy cl.187.233.

13. On 25 January 2017, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination for the position Retail Manager (General) (ANZSCO 142111).[1]

    [1] AAT file reference 1602690

14. 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.

15. The Tribunal relies on its findings in the nomination application decision and finds 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).

16. 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.

17. The application for the visa was made on 11 August 2015, which is before the nomination was approved on 25 January 2017. 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.

18. 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

19. The Tribunal remits the applications 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.

    Christopher Smolicz
    Member