Khan (Migration)

[2021] AATA 3705

Khan (Migration) [2021] AATA 3705 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zeeshan Hamid Khan
Mrs Beenish Anwer
Miss Fatima Zeeshan Khan
Miss Amna Zeeshan Khan

CASE NUMBER:  1825792

HOME AFFAIRS REFERENCE(S):          BCC2016/1933806

MEMBER:Mark O'Loughlin

DATE:12 July 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications 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 12 July 2021 at 4:06pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – 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 3 June 2016. 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 Office Manager (ANZSCO 512111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187 .233 of Schedule 2 to the Regulations because the nomination of the related position had not been approved.

6. The first applicant appeared before the Tribunal on 25 May 2021 to give evidence and present arguments. This was a combined hearing with the hearing of the application for approval of the nomination by the applicant’s employer, Hackham Medical Centre Pty Ltd. The Tribunal also received oral evidence from Dr Sandhu, the director of the sponsor.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination of the relevant position has been approved.

   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.

11. 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.

12. The Tribunal has had regard to the testimony of the witnesses and to a number of documents that were provided to it by the applicant and by the department.

13. The Tribunal is satisfied by that evidence that the person who will employ the applicant is the person who made the nomination.

14. By decision of today, 12 July 2021, the Tribunal set aside the decision not to approve the nomination and substituted decision approving it. There is no evidence to suggest that the nomination has subsequently been withdrawn.

15. There is no evidence of any adverse information known to immigration about the person who made the nomination or a person associated with that person.

16. There is no evidence that the position is not still available to the applicant.

17. The visa application was made before the nomination of the position was approved.

18. Therefore, cl 187.233 is met by the applicant.

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

    DECISION

20. The Tribunal remits the applications 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;

    Mark O'Loughlin
    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

    (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.