NAVDEEP KUMAR (Migration)

[2020] AATA 1601

NAVDEEP KUMAR (Migration) [2020] AATA 1601 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr NAVDEEP KUMAR
Ms CHANCHAL RANI

CASE NUMBER:  1729308

HOME AFFAIRS REFERENCE(S):          BCC2017/1492093

MEMBER:Alan McMurran

DATE:18 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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.187.223(2) of Schedule 2 to the Regulations; and

·cl.187.223 of Schedule 2 to the Regulations.

Secondary applicant

The Tribunal remits the application by the second named applicant for reconsideration with the direction that the application be considered for the remaining criteria.

Statement made on 18 May 2020 at 10:54am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Temporary Residence Transition stream – Café or Restaurant Manager – subject of ­an approved nomination – 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 lodged 23 November 2017 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, who are citizens of the Republic of India, applied for the visas on 25 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 the Temporary Residence Transition stream, to work in the nominated position of café or restaurant manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187. 223(2) of Schedule 2 to the Regulations because the nomination associated with the visa application by the nominators, S and V Randev, was refused.

6. Based on information now before the Tribunal, the Tribunal can proceed to a decision pursuant to section 360 (2) of the Act, which is favourable to the applicants, and without hearing.

7. The applicants were represented in relation to the review by their 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 Minister has approved the nomination in accordance with cl.187.223(2) of the Regulations.

10. The Tribunal has available for consideration its case file and the Department’s file[1] and the information from the related nomination files.[2]

    [1] BCC2017/1492093

    [2] Tribunal file 1719479

    Nomination of a position

11. 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.

12. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently 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); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in r.5.19)

    ·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. On the information available to the Tribunal, the Tribunal is satisfied and finds that the nomination application by S and V Randev has not been withdrawn. On 15 May 2020, the Tribunal decided on the nomination review application to approve the nomination. Cl. 187.223(2) is now met.

14. The Tribunal further finds it is not aware of any adverse information known to the Tribunal or to the Department about the nominators, or any person associated with the nominators (or the nominee), or any person associated with those persons.

15. The Tribunal is satisfied and finds that the occupation nominated of café or restaurant manager is still available to the applicant under a contract of employment with the nominators. The Tribunal finds the position offered is located in the Australian Capital Territory and in regional Australia, as prescribed in the relevant instrument.[3]

    [3] IMMI17/059

16. The Tribunal finds the visa application now on review was made no more than 6 months following the approval of the nomination.

17. Therefore, cl.187.223 is met.

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

    Secondary applicants

19. The secondary applicant is a member of the family unit of the primary review applicant. Secondary applicants must be members of the family unit of a person who has satisfied the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

20. As the Tribunal has found the primary review applicant meets the criteria in clause 187.223 of the Regulations, the appropriate course is to remit the application by the secondary applicant for further consideration as to the remaining criteria.

    DECISION

21. The Tribunal remits the applications 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.187.223(2) of Schedule 2 to the Regulations; and

    ·cl.187.223 of Schedule 2 to the Regulations.

    Secondary applicant

    The Tribunal remits the application by the second named applicant for reconsideration with the direction that the application be considered for the remaining criteria.

    Alan McMurran
    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.