Masih (Migration)

[2018] AATA 1588

Masih (Migration) [2018] AATA 1588 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Masih

CASE NUMBER:  1714340

DIBP REFERENCE(S):  BCC2016/2792776

MEMBER:Mark Bishop

DATE:5 April 2018

PLACE OF DECISION:  Melbourne

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.187.233(3) of Schedule 2 to the Regulations; and

Statement made on 05 April 2018 at 2:23pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Applicant is subject of an approved nomination – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, 186.233(3)

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 23 August 2016. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of motor mechanic general (ANZSCO 321211). 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 from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because on 18 May 2017 the nomination lodged by Zachiz Pty Ltd ATF The Tom Stojanovski Family Trust , being the nomination referred to in paragraph 187.233(1), was refused by the delegate of the Minister.

6. On 18 May 2017 the applicant, Mr Daniel Masih was issued with a natural justice let inviting him to comment within 28 days. Mr Masih did not respond to the invitation. The delegate made a finding that the appointment to which the visa applicant relates to has not been approved. Mr Masih did not satisfy Regulation 187.233(3).

7. Hence the delegate made a finding that Mr Daniel Masih (the applicant) did not meet the requirements of Regulation 187.223.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. On 29 March 2018 the Tribunal gave down its decision in review application Matter number 1711032. That review application involved as applicant Zachiz Pty Ltd ATF The Tom Stojanovski Family Trust. 

10. That (Matter number 1711032) was an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

11. The Tribunal set aside the decision under review and substituted a decision approving the nomination.

12. Hence the applicant now meets cl.187.233(3) of Schedule 2 to the Migration Regulations.

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 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; and

    Mark Bishop
    Member