Patel (Migration)

[2019] AATA 4592

Patel (Migration) [2019] AATA 4592 (24 September 2019)

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hardik Patel
Mrs Bhavika Hardik Patel
Miss Shanvi Hardik Patel

CASE NUMBER:  1901210

DIBP REFERENCE(S):  BCC2016/4329187

MEMBER:Andrew McLean Williams

DATE:24 September 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

·cl.187.233(3) of Schedule 2 to the Regulations

Statement made on 24 September 2019 at 12:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – nomination refused – further evidence provided – decision substituted – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19, Schedule 2, cls 187.233, 187.311

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 22 December 2016. The delegate refused to grant the visas on 17 January 2019.

2. The delegate made the decision on the basis that in on 16 November 2016 the nomination lodged by Exotic Spice Pty Ltd being the nomination referred to in regulation 187.233(1) had been refused by a delegate of the Minister, meaning that the first-named applicant could not meet the requirements of r.187.233(3).

3. On 23 September 2019 the Tribunal heard an application for review by Exotic Spice Pty Ltd of the decision made by a delegate of the Minister on 16 November 2016 by which the application for approval of the position nominated by it had been refused.  In the process of hearing that application for review (Tribunal matter 1834730), new evidence was received regarding the need for the nominated position, consistent with the requirements in r.5.19(4)(h)(ii).  In light of the new evidence the nomination made by Exotic Spice Pty Ltd was approved by the Tribunal on 24 September 2019.  In light of that, the Tribunal is satisfied that the criterion in clause 187.233(3) is now met by the first-named applicant and the other applicants are thus able to satisfy the requirement in r.187.311. 

4. The Tribunal concludes that this matter should now be remitted to the Department for reconsideration.

   DECISION

5. The Tribunal remits the application for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 187 visa:

   ·cl.187.233(3) of Schedule 2 to the Regulations

   Andrew McLean Williams
   Member