Mallikarachchi (Migration)

[2019] AATA 5690

Mallikarachchi (Migration) [2019] AATA 5690 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harendra Prasad Mallikarachchi
Mrs Dona Niluka Thushari Mallikarachchi
Ms Tenuki Tharulya Mallikarachchi

CASE NUMBER:  1723174

HOME AFFAIRS REFERENCE(S):          BCC2017/1377072

MEMBER:Alison Mercer

DATE:11 September 2019

PLACE OF DECISION:  Melbourne

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.

Statement made on 11 September 2019 at 3:10pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 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 13 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Hardware Technician (ANZSCO code 313111).

5. The delegate refused to grant the visas because she found that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination, as required by cl.187.233(3). The delegate also refused to grant the second and third named applicants (the applicant’s wife and child) visas as she found that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 187 visa, and there was nothing to suggest that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 26 September 2017, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Kasun Gamlath, as their representative and authorised recipient for correspondence.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. 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 (cl.187.233(1)).

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination (cl.187.223(2));

    ·the nomination has been approved and has not been subsequently withdrawn (cl.187.223(3) and (4));

    ·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 (cl.187.233(4A));

    ·the position is still available to the applicant (cl.187.233(5)), and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.187.233(6)).

11. It is not disputed that, at the time of the delegate’s refusal decision, the applicant was not the subject of an approved nomination, as the nomination of him made by his Australian employer, CompuAid IT Services Pty Ltd, had been refused by the Department on 3 August 2017.  Subsequently, CompuAid IT Services Pty Ltd lodged an application for review of the nomination refusal decision with the Tribunal.  On 11 September 2019, the Tribunal set aside the Department’s refusal decision and substituted its decision to approve the nomination (see AAT MRD decision 1719164 of 11 September 2019). Accordingly, the Tribunal is satisfied that cl.187.233(3) is now met.

12. Accordingly, the Tribunal is satisfied on the available evidence (which includes evidence given in relation to the nomination review case lodged by CompuAid IT Services Pty Ltd) that:

    ·CompuAid IT Services Pty Ltd made the original nomination application in respect of the applicant, and that employer continues to employ the applicant;

    ·the nomination has now been approved and has not been 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);

    ·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.

13. The Tribunal is satisfied that cl.187.233(1), (2), (4), (4A), (5) and (6) are met.

14. Therefore, the Tribunal finds that cl.187.233 as a whole is met by the applicant.

15. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second and third named applicants have applied on the basis of being members of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first applicant’s application upon remittal to the Department for reconsideration.

    DECISION

16. 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.

    Alison Mercer
    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.