Kumar (Migration)

[2023] AATA 4088

Kumar (Migration) [2023] AATA 4088 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Surender Kumar

Mrs Neetu Rani

REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)

CASE NUMBER:  1931584

HOME AFFAIRS REFERENCE(S):          BCC2018/1014579

MEMBER:Angela Julian-Armitage

DATE:

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration with the direction that, for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·the first named applicant meets cl 187.233 of Schedule 2 to the Regulations; and

·the second named applicant meets cl 187.311 of Schedule 2 to the Regulations.

Statement made on 20 November 2023 at 6:06pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – occupation of Restaurant Manager – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 March 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  seeks to satisfy the requirements for the subject   visa in the Direct Entry stream, to work in the nominated occupation of Restaurant Manager ANZSCO 141111.

5. The delegate’s refusal was based on a finding that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because he was not the subject of the approved corresponding nomination.

6. The applicants appeared before the Tribunal on 29 June 2023 to give evidence and present arguments accompanied by their representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa application is subject to an approved nomination.

   Nomination of a position

9. Clause 187.233 as applicable to this case is set out in full in an attachment to this decision. In essence, it requires 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.

10. In addition, this criterion also requires that:

    ·the 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 (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.

11. This Tribunal approved the nomination on 20 November 2023 and identified the person who  seeks to fill the position which is still available to him. Furthermore, there is no adverse information or a person associated with the nominator.

12. Therefore, the requirements  in cl 187.233  are met.

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

    DECISION

14. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration with the direction that for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·the first named applicant meets cl 187.233 of Schedule 2 to the Regulations; and

    ·the second named applicant meets cl 187.311 of Schedule 2 to the Regulations.

    Angela Julian-Armitage
    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.