Patel (Migration)

[2020] AATA 5266

Patel (Migration) [2020] AATA 5266 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hiteshkumar Vitthalbhai Patel
Mrs Monaben Hiteshkumar Patel
Mr Om Patel

CASE NUMBER:  1823153

HOME AFFAIRS REFERENCE(S):          BCC2016/3085415

MEMBER:Mr S Norman

DATE:7 December 2020

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

Statement made on 07 December 2020 at 10:04am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – refusal set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 16 September 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 case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Cook (ANZSCO: 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

6. The first named applicant appeared before the Tribunal on 3 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the representative of the associated nominator. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

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. On 10/04/2018, the nomination application lodged by the associated nominator (MOORAT HOTEL PTY LTD) was refused by the Department. On the same date, a Department natural justice letter was issued requesting comment about this from the applicant within a prescribed period. On 16/05/2018, an email was received from the migration agent which stated (in part):

   ….We note the applicant Mr Patel and dependents are intending to make an application for review with the AAT, following the outcome from The Department of Home Affairs. The applicants nominator MOORAT HOTEL PTY LTD has already made an application with respect to the nomination refusal; AAT Case No: 1812294….”.

10. The delegate then refused the visa as the applicant did not meet cl.187.233(3); or cl.187.233.

11. The delegate also considered the application under the Temporary Residence Transition stream and the Agreement stream. However, the reasons set out therein, the delegate was not satisfied the applicant met relevant criteria.

12. The delegate also considered cl.187.311 (membership of the family unit). However, as no person that the primary criteria for the grant of the visa, none were entitled to the visa based on their membership of the family unit of a person who had. The delegate then refused to grant the applicant a Regional Sponsored Migration Scheme (Subclass 187) visa. 

13. On 7 December 2020, the Tribunal approved the nomination lodged by the applicant’s associated nominator (MOORAT HOTEL PTY LTD). Accordingly, the Tribunal is now satisfied the first named applicant meets cl.187.233(3).

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.187.233(3) of Schedule 2 to the Regulations; and

    Mr S Norman
    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.