Patel (Migration)

[2023] AATA 2206

Patel (Migration) [2023] AATA 2206 (11 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ketankumar Bhagavanbhai Patel
Mrs Subhadraben Ketankumar Patel
Miss Swara Patel
Miss Henny Ketankumar Patel

REPRESENTATIVE:  Mr Sudhirkumar Desai (MARN: 9901822)

CASE NUMBER:  1930362

HOME AFFAIRS REFERENCE(S):          BCC2018/640476

MEMBER:Karen McNamara

DATE:11 July 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 (3) of Schedule 2 to the Regulations.

·The Tribunal does not have jurisdiction in this matter in relation to the third named and fourth named applicants.

Statement made on 11 July 2023 at 12:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – refusal of related nomination application set aside – members of family unit – secondary applicant children not in migration zone when application for review made – no jurisdiction in relation to them – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 347(2)(a), (3)
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 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 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 applied for the visas on 7 February 2018. 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 (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (Mr Ketankumar Bhagavanbhai Patel) (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Store Manager under the occupation of Retail Manager (General) (ANZSCO 142111).

5. On 8 October 2019, the delegate refused to grant the visas because Mr Ketankumar Bhagavanbhai Patel did not meet cl.187.233(3) of Schedule 2 to the Regulations, because on 3 September 2019, the nomination application lodged by the nominator Shivay Enterprise Pty Ltd, was refused by a delegate of the Minister for Home Affairs.

6. The delegate also found that the second named applicant, Mrs Subhadraben Ketankumar Patel, third named applicant Miss Swara Patel and fourth named applicant Miss Henny Ketankumar Patel, could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants applied to the Tribunal on 26 October 2019, for review of the delegate’s decision. The review application was accompanied by a copy of the delegate’s decision.

8. On 24 May 2023, Mr Ketankumar Bhagavanbhai Patel, appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Nimishaben Bhatt and Mr Shailesh Bhatt (the nominator) in the related matter for the nomination review (AAT Case file 1926323).

9. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

13. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

15. The nominating employer, Shivay Enterprise Pty Ltd applied to the Department for approval of a nomination in relation to the position of Store Manager under the occupation of Retail Manager (General) (ANZSCO 142111). That nomination was refused by the Department and consequently the applicant’s visa application was refused.

16. Shivay Enterprise Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1926323). On 11 July 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

17. The second named applicant (Mrs Subhadraben Ketankumar Patel), applied on the basis of being a member of the family unit of the first named applicant (Mr Ketankumar Bhagavanbhai Patel). The application by Mrs Subhadraben Ketankumar Patel will be determined by reference to the outcome of Mr Ketankumar Bhagavanbhai Patel’s application on remittal to the Department for consideration.

    Jurisdiction in relation to the third named and fourth named applicants

18. Section 347(2) of the Act, specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

19. Department records indicate the third named applicant (Miss Swara Patel) and fourth named applicant (Miss Henny Ketankumar Patel), were offshore at the time of the primary decision on 8 October 2019 and at the time the application for review was lodged on 26 October 2019. In the circumstances, the Tribunal finds that Miss Swara Patel and Miss Henny Ketankumar Patel were not in the migration zone at the relevant time. 

20. The applications for review made by Miss

    Swara Patel and Miss Henny Ketankumar Patel   

    
    do not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the third named and fourth named applicants.

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

    DECISION

22. 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.

    ·The Tribunal does not have jurisdiction in this matter in relation to the third named and fourth named applicants.

    Karen McNamara
    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

    (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.