Patel (Migration)

[2019] AATA 2139

Patel (Migration) [2019] AATA 2139 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Kanan Paraskumar Patel
Paraskumar Jagdishbhai Patel
Pal Paraskumar Patel

CASE NUMBER:  1701490

HOME AFFAIRS REFERENCE:                BCC2016/1039859

MEMBER:Lilly Mojsin

DATE:18 April 2019

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.187223 of Schedule 2 to the Regulations.

Statement made on 18 April 2019 at 1:13pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 187 Employer Nomination Scheme – Direct Entry stream – position of Baker – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.223, 198.233, rr 1.13, 5.19

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 10 March 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present review, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Baker, ANZSCO 351111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 cl.187.233(3) of Schedule 2 to the Regulations because the nomination lodged by Vimred Pty Ltd Atf Hume Hot Bake Unit Trust ABN 33 213 596 659 t/a Hot Bake Lavington was not approved.

6. The applicants appeared before the Tribunal on 7 February 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made nomination

   ·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 still available to the applicant, and

   ·the visa application was made no more than six months after the nomination of the position was approved.

10. On 18 April 2019, the Tribunal approved the related nomination of Baker ANZSCO Code 351111. The person who will employ the applicant, Vimred Pty Ltd Atf Hume Hot Bake Unit Trust, is the person who made nomination. The nomination has not been withdrawn.

11. The Tribunal is not aware of any 'adverse information' known to the Department about the person who made the nomination or a person 'associated with' that person. The position is located in Lavington, postcode 2641. The postcode is 2641 which is in regional NSW as defined in r.5.19.

12. The position is still available to the applicant and, the visa application was made prior to the approval of the nomination.

13. The Tribunal finds cl.187.223 has been met.

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

    DECISION

15. 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.187.223 of Schedule 2 to the Regulations

    Lilly Mojsin
    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.