LAKHI (Migration)

[2019] AATA 922

LAKHI (Migration) [2019] AATA 922 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms DIKSHA LAKHI

CASE NUMBER:  1729276

HOME AFFAIRS REFERENCE(S):           BCC 2017/1282049

MEMBER:R. Skaros

DATE:18 March 2019

PLACE OF DECISION:  Sydney

DECISION: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.187.223(2) of Schedule 2 to the Regulations.

Statement made on 18 March 2019 at 12:28pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 April 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook in a business operated by Sardana Family Trust & K Sharma & Y Shelli.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations because the nomination in relation to the applicant was not approved.

6. The applicant appeared before the Tribunal on 17 September 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review by her 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 relevant nomination has been approved.

   Nomination of a position

10. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, this criterion also requires that the nomination has been approved: cl.187.223(2).

11. The applicant applied for the visa on the basis of an employer nomination made by Sardana Family Trust & K Sharma & Y Shelli (the nominator). On 19 September 2017, the Department decided to refuse that nomination.

12. The nominator applied for review of the decision not to approve the nomination of the position in relation to the applicant. On 18 March 2019, the Tribunal set aside the decision and substituted a decision approving the nomination.

13. As the relevant nomination in relation to the applicant has been approved, the Tribunal finds that the requirement in cl.187.223(2) is met.

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

    DECISION

15. 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.187.223(2) of Schedule 2 to the Regulations.

    R. Skaros
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.