Gurung (Migration)

[2019] AATA 5726

Gurung (Migration) [2019] AATA 5726 (6 December 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amit Gurung
Mrs Sapana Gurung

CASE NUMBER:  1804157

DIBP REFERENCE(S):  BCC2016/2482753

MEMBER:Andrew George

DATE OF ORAL DECISION:  6 December 2019

DATE OF DECISION:  6 December 2019

DATE CORRIGENDUM

SIGNED:17 January 2020

PLACE OF DECISION:  Darwin

AMENDMENT:  The following corrections are made to the decision:

The regulation on the cover page of the decision, and also at paragraph [20], currently reads as ‘cl. 187.223’ but should read as ‘cl. 187.233’. This is consistent with the findings in paragraph [14].

The first sentence in paragraph [4] currently reads “The delegate refused to grant the visas because the applicant did not meet clause 187.223 of schedule 2 to the regulations because the nomination was refused”. This sentence should read “The delegate refused to grant the visas because the applicant did not meet clause 187.233 of schedule 2 to the regulations because the nomination was refused”.

Andrew George
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amit Gurung
Mrs Sapana Gurung

CASE NUMBER:  1804157

DIBP REFERENCE(S):  BCC2016/2482753

MEMBER:Andrew George

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 December 2019 at 10:00 am (NT time)

DATE OF WRITTEN RECORD:                20 December 2019

PLACE OF DECISION:  Darwin

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.

Statement made on 20 December 2019 at 1:09pm

Application for Review

1. At the hearing on 6 December 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

Statement of Decision and Reasons

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant’s regional employer nomination permanent class RN visas under section 65 of the Migration Act 1958, otherwise known as the Act. The applicants applied for the visas on 26 July 2016. At the time of the application, class RN contained one subclass, subclass 187 regional sponsored migration scheme. The criteria of a subclass 187 visa are set out in part 187 of schedule 2 to the Migration Regulations 1994, otherwise called “the regulations”.

1. 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 to satisfy only the secondary criteria.  Applicants seeking to satisfy the primary criteria must meet the common criteria, as well as the criteria of one or two alternative visa streams; Temporary Resident Transition stream or the Direct Entry stream.  In the present case, the first named applicant, Mr Gurung, is seeking the visa in the Direct Entry scheme.  I note that I will be calling the first-named applicant being Mr Gurung, “the applicant”, for simplicity.  And the applicant is seeking the visa in the direct entry scheme to work in the nominated position of retail manager general, 142111.

1. The delegate refused to grant the visas because the applicant did not meet clause 187.223 of schedule 2 to the regulations because the nomination was refused. The applicant appeared before the tribunal on 6 December 2019, being today, to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent, Ms Margaret Dizon, of the Migration Corporation of Australia Pty Ltd.

1. For the following reasons the tribunal has concluded that the matter should be remitted for reconsideration.

2. The first issue I will deal with is licence, registration and membership requirements.  Clause 187.211 applies to all primary applicants, if it is mandatory in the state or territory where the nominated position is to hold a licence, registration or membership of a professional body to undertake the tasks of a kind to be performed in the occupation to which the position relates.  In these cases, the applicant must hold or be eligible to hold such a licence, registration or membership at the time of the visa application. 

1. There is no evidence before the tribunal that the nominated position requires any such licence, registration or membership in the Northern Territory, and therefore clause 187.211 is not applicable. 

1. The second consideration is that employment will be provided.  Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the nominated application.  For the reasons just stated in the decision of case number 1802217, being the visa nomination, the tribunal is satisfied that the nominated position will provide the applicant with employment referred to in the nominated application.  Therefore, clause 187.212 is met. 

1. The next consideration for the tribunal is whether the applicant has engaged in conduct in contravention of the Act.  An applicant meets clause 187.212A(a) if they have not, in the previous three years, engaged in conduct that constitutes a contravention of subsections 245AR(1), 245AS(1), 245AT(1), or 245AU(1) of the Act.  In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or provide any benefit in return for the occurrence of a sponsorship-related event.  The meanings of benefit and sponsorship-related event, in this context, are provided under section 245AQ of the Act. 

10.  Alternatively, where the applicant is engaged in such conduct in the previous three years, an applicant may satisfy clause 187.212A(b) if it is reasonable to disregard that conduct.  In this case, there is certainly no evidence before the tribunal the applicant engaged in any such conduct in the previous three years and therefore, clause 187.212A is met. 

11.  The next consideration was age requirements.  At the time the visa application was made, an applicant in the direct entry stream must either meet certain age requirements or must be in a class of persons specified in the relevant instrument.  In this case, as the visa application was made before 1 July 2017, the applicant must not have turned 50 at the time of the application.  In the present case, the applicant was born on 16 December 1989 and has a birthday soon and therefore, clause 187.231 is met. 

12.  The next consideration of the tribunal is English language proficiency.  At the time the visa application was made, an applicant in the direct entry stream must either have competent English or be in a class of persons specified in the relevant instrument in references clause 187.232.  Competent English is defined in regulation 1.15C of the regulations.  A person will have competent English if he undertook a specified language test in the three years preceding the visa application and achieved a specified score.  The specified score is stated in the relevant instrument.  The tribunal has evidence from Mr Gurung that he completed an IELTS test on 4 March 2014. 

13.  The evidence is that the listening component was eight and the reading component was seven, writing was six and speaking was 7.5.  All of those scores being either six or above.  The tribunal also notes that the visa application was made on 6 July 2016 and therefore, his testing was conducted within the three years preceding the visa application.  Therefore, the tribunal accepts the oral evidence of Mr Gurung and having also noted the submissions of Ms Dizon and therefore, clause 187.232 is met. 

14.  The next consideration for the tribunal is the nomination of the position.  Clause 187.233 essentially requires that a person who will employ the applicant is the person who made the 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, that the position is still available to the applicant and that the visa application was made no more than six months after the nomination of the position was approved.  The tribunal notes its finding in case 1802217 of today’s date, approving the visa nomination and addressing the criteria outlined, therefore, clause 187.233 is met.

15.  The next consideration of the tribunal is skills and qualifications.  For the applicants in the direct entry stream, clause 187.234 requires that, at the time of the application, either the applicant is in a specified class of persons and being an exempt person, or if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia, that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority.  Or, if neither of those two things apply, that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. 

16.  At the time of application, on 6 July 2016, the applicant was not in the exempt class of persons and had no suitable skills assessment.  However, these criterion, therefore, do not apply.  The question, therefore, for the tribunal is whether or not the applicant had the qualifications in ANZSCO to perform the occupation of retail manager general, 142111 at skill level 2.  This would usually require an Associate degree, an Advanced Diploma or Diploma.  The tribunal has received oral evidence from Mr Gurung that he obtained a Diploma of Hospitality from Holmes Institute, that he studied between 2009 and 2010 and that that diploma was awarded in June 2010. 

17.  The tribunal also notes the oral submission of Ms Dizon to that extent and the tribunal accepts Mr Gurung’s oral evidence in this regard.  Therefore, clause 187.234 is met. 

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

19.  Furthermore, the tribunal recommends that the visa application of Mrs Supana Gurung is reconsidered in light of the findings made with regard to Mr Amit Gurung’s application.

Decision

20. 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.

Andrew George
Member