Patel (Migration)

[2023] AATA 487

Patel (Migration) [2023] AATA 487 (13 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hiral Ajaykumar Patel
Mr Ajaykumar Jayantibhai Patel
Mr Bhagwat Ajaykumar Patel

REPRESENTATIVE:  Ms Yin Tan (MARN: 0320090)

CASE NUMBER:  1921012

HOME AFFAIRS REFERENCE(S):          BCC2017/4858254

MEMBER:Angela Julian-Armitage

DATE:13 March 2023

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  together with Mr Ajaykumar Jayantibhai Patel and Mr Bhagwat Ajaykumar Patel meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visas:

·cl 187.233 of Schedule 2 to the Regulations;

·cl. 187.223 of Schedule 2 to the Regulations; and

·cl 187. 311 of Schedule 2 to the Regulations.

Statement made on 13 March 2023 at 1:48pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – refusal of related nomination application set aside – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1958 (Cth), Schedule 2, cls 187.223, 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

2. The application for the visas were made on 19 December 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 (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 primary applicant is seeking to avail herself of the Direct Entry stream in order to work in the nominated position of Retail manager (General) (ANZSCO 142111).

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations as the applicant did not have an approved nominator because the nomination lodged by MILC Nominees Pty Ltd was refused by a delegate from the Department of Home Affairs.

6. The applicants appeared before the Tribunal on 12 January 2023 with her legal representative  to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is  whether pursuant to reg 187.233 there is an approved nomination for the primary visa applicant’s position in place.

   Nomination of a position

9. Sub-regulation 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.

10. 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.

11. In the present case, the relevant nomination was approved by this Tribunal on 13 March 2023. Furthermore, the Tribunal finds that the above criteria is met and that there is no adverse information know to either the Department or this Tribunal in  relation to the visa applicant or an associated person. The visa applicant has been in the position since 25 October 2017 with no intention on the part of the nominator or the nominee to cease this employment voluntarily.

12. Therefore, cl 187.233  is met as are cls187.223 and 187.311.

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

    DECISION

14. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant together with Mr Ajaykumar Jayantibhai Patel and Master Bhagwat Ajaykumar Patel meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations;

    ·cl 187.223 of Schedule 2 to the Regulations; and

    ·cl 187.311 of Schedule 2 to the Regulations.

    Angela Julian-Armitage
    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.