Harijan (Migration)

[2022] AATA 2031

Harijan (Migration) [2022] AATA 2031 (17 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Niranjan Harijan
Mrs Sarita Harijan

REPRESENTATIVE:  Mr Justin Christopher Browne (MARN: 1169631)

CASE NUMBER:  1915416

HOME AFFAIRS REFERENCE(S):          BCC2018/877896

MEMBER:R. Skaros

DATE:17 June 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 187.233(3) of Schedule 2 to the Regulations.

Statement made on 17 June 2022 at 5:39pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 23 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 Cook (ANZSCO 351411).  

5. The delegate found the applicant did not meet the requirements of cl.187.233(3) because the Department had not approved the application for the nominated position made by the applicant’s sponsor, Cosh Corp Pty Ltd ATF T.N and E.M Cosh Family Trust.

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

7. The Tribunal did not consider a hearing to be necessary in this matter as it was able to find in favour of the applicants on the evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant was the subject of an approved nomination as required by cl.187.233(3).

   Nomination of a position

10. 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. In addition, this criterion also requires that the person who will employ the applicant is the person who made nomination and the nomination has been approved.

11. In this case the nomination lodged by the Nominator, being the nomination referred to in paragraph 187.233(1), was refused on 12 March 2019.  In a letter sent on the same day the applicant was advised that the nomination had not been approved. The letter also indicated that the applicants had the option to withdraw the visa application. The applicant did not respond to that letter, and on 27 May 2019 the delegate determined that the applicant was not subject to an approved nomination and did not meet the requirements of cl.187.233(3).

12. On 7 April 2022 the Tribunal set aside the decision of the Department to refuse the nomination and substituted a decision approving the nomination. The applicant is now subject to an approved nomination and the Tribunal is satisfied that cl.187.233(3) is met.

13. Given these findings, the appropriate course is to remit the visa applications for the first and second named applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

14. 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(3) of Schedule 2 to the Regulations.

    R. Skaros
    Senior 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.