Kharel Kandel (Migration)

[2019] AATA 2103

Kharel Kandel (Migration) [2019] AATA 2103 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Debaki Kharel Kandel
Mr Shiva Prasad Kandel

CASE NUMBER:  1831871

HOME AFFAIRS REFERENCE(S):           BCC2017/2310561

MEMBER:Michelle East

DATE:24 April 2019

PLACE OF DECISION:  Perth

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; and

Statement made on 24 April 2019 at 2:52pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Café or Restaurant Manager (ANZSCO 141111) – approved nomination – position is still available to the applicant – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359AA, 376
Migration Regulations 1994, rr 1.13, 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 Home Affairs 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 for the visas on 29 June 2017. 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 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 Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).  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 for the visa 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 of Schedule 2 to the Regulations because the nomination in relation to the applicant had been refused.

6. The applicants appeared before the Tribunal on 16 April 2019 to give evidence and present arguments.

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   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 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.

12. The applicant was nominated by Shridar Paudel for the position of Café or Restaurant Manager.  The position is the same as in the r.5.19 nomination application and the employer is the nominator.

13. The nomination was initially refused by the Department.  However, on 24 April 2019 this Tribunal made a decision to set aside the refusal and substituted a decision approving the nomination.

14. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant.  The Tribunal is also satisfied that the visa application was not made more than six months after the nomination of the position was approved.

15. There was evidence before the Tribunal of adverse information known to the Department, the contents of which were subject to two section 376 Certificates of Non-Disclosure dated 11 December 2018 and 7 February 2019.

16. The Tribunal was of the view that the certificate was valid and put the gist of the information to the applicant pursuant to section 359AA of the Act.  After careful consideration the Tribunal has decided to have no regard to the information which was covered by the Certificate.  Accordingly, the Tribunal considers it is reasonable to disregard any such information.

17. Given the above, the Tribunal finds that the applicant meets all the requirements of cl.187.233.

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. As the secondary applicant applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first name applicant’s application on remittal to the Department for reconsideration.

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

    DECISION

21. 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.

    Michelle East
    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.