Dhimal (Migration)

[2017] AATA 2125

Dhimal (Migration) [2017] AATA 2125 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Monika Dhimal
Mr Lilaraj Sharma

CASE NUMBER:  1615049

DIBP REFERENCE(S):  BCC2015/3200149

MEMBER:Antonio Dronjic

DATE:31 October 2017

PLACE OF DECISION:  Melbourne

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 31 October 2017 at 4:47pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – Cook – Nomination initially refused – Nomination subsequently approved

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 5.19, 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 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 1 November 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 a Cook. 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 visas because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because the nomination application that was lodged by the applicant’s prospective employer was refused by the department on 21 July 2016.

6. The applicants applied to the tribunal on 17 September 2016 for review of the delegate’s decisions. The applicants were represented in relation to the review by their registered migration agent.

7. In reaching its decision the tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.187.233.

   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 21 July 2016, the Department refused the nomination application lodged by the applicant’s prospective employer, Nullagine Hotel Pty Ltd. The nominated occupation was Cook.

12. On 9 August 2016, Nullagine Hotel Pty Ltd applied to this tribunal for review of the Department’s decision to refuse the nomination application.

13. On 31 October 2017, the tribunal set aside the primary decision and substituted it with its decision that the nomination is approved.

14. Accordingly, the Tribunal is satisfied on the available evidence (which includes evidence given in relation to the nomination review case) that:

    ·Nullagine Hotel Pty Ltd made the original nomination application in respect of the applicant, and that employer continues to employ the applicant;

    ·The nomination has now been approved and has not been 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);

    ·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.

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

    DECISION

16. 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; and

    Antonio Dronjic
    Member