Narsi Ram (Migration)

[2023] AATA 2117

Narsi Ram (Migration) [2023] AATA 2117 (15 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Narsi Ram
Mrs Rekha Rani
Miss Anaya Singh

REPRESENTATIVE:  Dushan Nikolic

CASE NUMBER:  1929978

HOME AFFAIRS REFERENCE(S):          BCC2018/1056728

MEMBER:Katie Malyon

DATE:15 June 2023

PLACE OF DECISION:  Sydney

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 15 June 2023 at 12:44 pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Retail Manager – tribunal set aside nomination application – approved nomination – position is still available to the applicant –subject of an approved nomination –– decision under review remitted  

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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants - Indian nationals Narsi Ram, Rekha Rani and Anaya Singh - applied for the visas on 6 March 2018.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In the present case, Mr Ram is seeking the visa in the Direct Entry stream to continue working in the nominated position of Retail Manager ANZSCO 142111 with his nominating employer Dhillon and Saron Pty Ltd ACN 169 429 001 as the Trustee for Dhillon and Saron Trust T/A Foodworks Murtoa and Jeparit Supermarket ABN 97 749 824 841 (the Trustee).

5. The delegate refused to grant the visas on the basis Mr Ram, as the primary applicant, did not meet cl 187.233(3) of Schedule 2 to the Regulations because the Trustee’s nomination was refused on 29 August 2019. The provisions of cl 187.233 are set out in the Attachment to this decision.

6. On 15 June 2023, the Tribunal approved the nomination made by the Trustee for the position of Retail Manager in respect of Mr Ram. Accordingly, cl 187.233(3) of Schedule 2 to the Regulations is now met.

7. Given this finding, the appropriate course is to remit Mr Ram’s Subclass 187 visa application to the Minister to enable consideration of remaining criteria for grant of the visa.  The Tribunal will provide the Department with a copy of Mr Ram’s favourable skill assessment from VetAssess dated 25 March 2022.  

8. The other applicants, Ms Rekha Rani and Miss Anaya Singh, applied for their Subclass 187 visas on the basis of being a member of the family unit of a person who holds the Subclass 187 visa.  As such, their application will be determined by reference to the outcome of Mr Ram’s application on remittal to the Department for reconsideration.

   DECISION

9. 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(3) of Schedule 2 to the Regulations.

   Katie Malyon

   
   Member

   ATTACHMENT - Extract from Schedule 2 to the Migration Regulations 1994

   Subclass 187 – Regional Sponsored Migration Scheme

   …

   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.

   oOOo