Kumar (Migration)

[2018] AATA 419

Kumar (Migration) [2018] AATA 419 (23 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sushil Kumar

CASE NUMBER:  1601383

DIBP REFERENCE(S):  BCC2015/1882525

MEMBER:Katie Malyon

DATE:23 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 visa:

·cl.187.233(3) of Schedule 2 to the Regulations

Statement made on 23 February 2018 at 4:39 pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Tribunal approved employer’s nomination – Remit the visa application to the Minister

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 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 Immigration to refuse to grant the applicant, Mr Sushil Kumar, a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).    

2. Mr Kumar, a national of India, applied for the visa on 30 June 2015.  The delegate refused to grant the visa on 18 January 2016.

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.

4. In the present case, Mr Kumar is seeking the visa in the Direct Entry stream.  This stream is designed for persons who, relevant to this case, are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.  The Direct Entry stream also is available for persons who have never, or have only briefly, worked in the Australian and are applying for the visa outside Australia.

5. The delegate refused to grant the visa because Mr Kumar did not meet cl.187.233(3) of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 23 February 2018, the Tribunal approved the nomination in respect of Mr Kumar under r.5.19(4) of the Regulations made by his employer Industry Education Networking Pty Ltd. Accordingly, Mr Kumar now meets cl.186.233(3) of Schedule 2 of the Regulations is met.

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

   DECISION

9. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl.187.233(3) of Schedule 2 to the Regulations.

   Katie Malyon

   
   Member