Patel (Migration)

[2022] AATA 935

Patel (Migration) [2022] AATA 935 (9 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Suhaile Patel
Ms Sameena Adam Lambat

REPRESENTATIVE:  Ms Avelyn Yashan Chen (MARN: 1800051)

CASE NUMBER:  1900395

HOME AFFAIRS REFERENCE(S):          BCC2018/932948

MEMBER:Terrence Baxter

DATE:9 February 2022

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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

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

Statement made on 09 February 2022 at 9:28am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – child born after delegate’s refusal decision cannot be added as review applicant unless department refuses application on her behalf – department’s advice that child can only be included in visa application if parents’ refusal decision remitted – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 27 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Wall and Floor Tiler for SH and I Management Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 17 December 2018 because the applicant did not meet the requirements of Schedule 2 to the Regulations which required that he be the subject of an approved nomination. The delegate found that the nomination of the nominator was refused on 13 November 2018. The Tribunal notes that the delegate’s decision, although initially referring to an application by the applicant for a Subclass 187 visa in the Direct Entry stream (which requires that the criteria in cl 187.233 be met), assesses the application against the requirements relating to an application in the Temporary Residence Transition stream (cl 187.223). The delegate found that the applicant did not meet the requirements of cl 187.223(2) and did not meet the requirements of cl 187.223 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl 187.311) requiring her 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 lodged an application for review of the delegate’s decision with the Tribunal on 7 January 2019.

8. The applicants appeared before the Tribunal on 24 November 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the relevant nomination application.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, 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 video conference.

10. The applicants were represented in relation to the review. The representative did not attend the Tribunal hearing. The applicants confirmed at the hearing that they wished to proceed with the hearing without the representative being present.

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 there is an approved nomination.

    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 of the Regulations); 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. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Wall and Floor Tiler approved, with the applicant as nominee, on 26 February 2018. The nomination application was refused on 13 November 2018 and the nominator sought review of that decision with the Tribunal on 4 December 2018.

16. On 9 February 2022, 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 the nominator.

17. Therefore, cl 187.233(3) is met in respect of the applicant.

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

19. The second named applicant has applied on the basis that she is a member of the family unit of the applicant. Her application will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation to the first named applicant.

20. On 22 November 2021, the applicant contacted the Tribunal requesting that [his daughter], born on [Date], be added as an applicant in this application. The applicant was advised that, as his daughter was born after the date of the delegate’s decision, she could not be added as an applicant unless he was able to produce a copy of a decision of the Department refusing an application in respect of his daughter, together with a request by him that she be added as an applicant.

21. At the hearing on 24 November 2021, the nominator was allowed until 9 December 2021 to provide evidence and/or submissions. The applicants were advised that the Tribunal would not make a decision in relation to their application before a decision was made on the nomination application. On 8 December 2021, the applicant contacted the Tribunal again advising that he was attempting to obtain documents from the Department regarding his daughter and he was concerned that he may require an extension of time to provide documents from the Department. On 10 December 2021, the Tribunal notified the applicant that a decision in this matter would not be made before 5 January 2022 to allow further information to be provided to the Tribunal regarding his daughter.

22. On 15 December 2021, the applicant provided to the Tribunal a copy of an email from the Department advising that the applicant’s daughter could only be included in the visa application if the refusal of the visa application had been set aside by the Tribunal and the application had been remitted to the Department. The email stated that this was so because a fresh decision would have to be made and that the application would revert to the primary decision-making stage.

    DECISION

23. 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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

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

    Terrence Baxter
    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.