Dookhy (Migration)

[2022] AATA 4158

Dookhy (Migration) [2022] AATA 4158 (10 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bye Ahmad Bashir Dookhy
Ms Bibi Yasminah Banon Dookhy

REPRESENTATIVE:  Mr Joseph Yao (MARN: 0743862)

CASE NUMBER:  1920845

HOME AFFAIRS REFERENCE(S):          BCC2018/564131

MEMBER:Namoi Dougall

DATE:10 October 2022

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 187.223 of Schedule 2 to the Regulations; and

And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visa:

·cl 187.312 of Schedule 2 to the Regulations.

Statement made on 10 October 2022 at 5:33pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Restaurant Manager –approved nomination – position is still available to the applicant –subject of an approved nomination  – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 187.312

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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 February 2018. 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 (Cth) (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination by the applicant’s nominating buisness employer, Premesco Pty Ltd (the nominating business) was refused by the Department.

6. The applicant appeared before the Tribunal on 27 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the director of the nominating business, Mr Peter Pretscherer.

7. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case whether the applicant meets the requirements of reg.187.223.

Nomination of a position

1. 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.

2. 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 reg 1.13A and reg 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.

3. On 19 June 2019, the nomination application lodged by the nominating business under the Employer Nomination Scheme was refused by the Department.

4. The Tribunal on 10 October 2022 in a review of the nomination refusal has subsequently approved the nomination. The Tribunal thus finds that the position to which the application relates is the subject of an approved nomination and meets the requirements of cl.187.223 of the Migration Regulations.

5. The Tribunal accordingly finds that the requirements of reg.187.223 are satisfied.

6. The second named applicant (the secondary applicant) applied for the visa on the basis of being a member of the family unit of the applicant who meets primary criteria. As the Tribunal has approved the associated nomination and the secondary applicant is included in that nomination, the Tribunal finds that the secondary applicants met the criteria in reg.187.312.

7. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

decision

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 187.223 of Schedule 2 to the Regulations.

And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visa:

·cl 187.312 of Schedule 2 to the Regulations.

Namoi Dougall
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

(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.