Patel (Migration)

[2019] AATA 1260

Patel (Migration) [2019] AATA 1260 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Palak Patel
Mr Pravinbhai Lavajibhai Chaudhari

CASE NUMBER:  1619344

HOME AFFAIRS REFERENCE(S):           BCC2015/4025135

MEMBER:Susan Trotter

DATE:15 January 2019

PLACE OF DECISION:  Brisbane

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(3) of Schedule 2 to the Regulations.

Statement made on 15 January 2019 at 1:19pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – nomination refused – decision set aside – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
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 and Border Protection (the Minister) on 1 November 2016 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 23 December 2015. 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 Direct Entry stream, to work in the nominated position of Restaurant Manager for Krishna Kant Pty Ltd.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination had been refused on 26 September 2016 and that accordingly the applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole as required.

6. The delegate also found that the second-named applicant (identified as the applicant’s husband in the visa application) could not be granted a Subclass 187 visa, as he did not meet the secondary visa criteria (cl.187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that he met the primary visa criteria in his own right.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 17 November 2016.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite a representative of the applicants to appear before the Tribunal.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Clause 187.233(3) is one of the essential criteria that must be met. It requires that the position to which the application relates is the subject of an application for approval of a nomination, which nomination has been approved.

13. Records of the Department of Home Affairs[1] (the Department) indicate that the applicant’s employer, Krishna Kant Pty Ltd ATF the Trustee for the DNP Trust, made an application to have the position of Café or Restaurant Manager approved, with the applicant as the nominee, with the Department on 21 December 2015. The nomination application was refused on 26 September 2016 and Krishna Kant Pty Ltd ATF the Trustee for the DNP Trust sought review of that decision with the Tribunal on 13 October 2016.

    [1] Previously the Department of Immigration and Border Protection

14. On 15 January 2019, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Krishna Kant Pty Ltd ATF the Trustee for the DNP Trust.

15. Therefore, cl.187.233(3) is now met in relation to the applicant.

16. As the second-named applicant applied on the basis that he is a member of the family unit of the applicant, his application will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

    Conclusion

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

18. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction - Conducting Migration and Refugee Reviews (30 June 2015), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    DECISION

19. 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.

    Susan Trotter
    Member

    
    

    ATTACHMENT

    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.