Patel (Migration)

[2020] AATA 4104

Patel (Migration) [2020] AATA 4104 (14 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bharatkumar Rameshbhai Patel
Master Dhyan Patel
Mrs Arpitaben Rameshbhai Patel

CASE NUMBER:  1806005

HOME AFFAIRS REFERENCE(S):          BCC2017/1605605

MEMBER:Peter Emmerton

DATE:14 September 2020

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations

Statement made on 14 September 2020 at 1:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Retail Manager –tribunal set aside nomination application –approved nomination – position is still available to the applicant –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

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).

2. The applicants applied for the visas on 4 May 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 (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 Retail Manager (General), ANZSCO 142111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal, via telephone on 14 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Manishhaben Patel, representing the nominating entity, OM Patel Group Pty Ltd OM Patel Family Trust. This was combined with the hearing for MRT file ref 1803110, the nominator.

7. The Tribunal found the evidence given by the applicant to be credible and they appeared to answer questions in an open and honest manner without obfuscation.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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 applicant. 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 applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was 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 the nomination has been approved.

12. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

13. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

    Nomination of a position

14. 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.

15. In addition, this criterion also requires that:

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

16. On 13 March 2017 an application was lodged for a residence visa under the Regional Employer Nomination (Permanent) (Class RN 187) visa in favour of the visa applicant. On 31 January 2018 the application was refused.

17. On 14 September 2020, the Tribunal set the Department’s decision aside and substituted a decision approving the appointment for the position of Retail Manager (General), ANZSCO 142111.[1] Based on evidence provided in that application, the Tribunal is satisfied the approved position is the same as the one that was the subject of the relevant r.5.19(4)(h)(ii) nomination application and identifies the applicant in relation to the position. The Tribunal is also satisfied the position is the same as that in the visa application declaration. Therefore cl.187.233(1) is met.

    [1] See MRT decision file ref. 1803110

18. The Tribunal relies on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl. 187.233(2) is met. In-light of the Tribunal’s approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.187.233(3).

19. The Tribunal is also satisfied on all the evidence before it that the relevant appointment has not been withdrawn and is still available to the visa applicant. Therefore cl.187.233(4) and (5) are met. The application for the visa was made on 13 March 2017, which is before the nomination was approved on 14 September 2020. As the visa application was made on a date which is no more than 6 months after the approval, cl.187.233 (6) is met.

20. The Tribunal therefore finds the visa applicant satisfies the requirements specified in cl.187.233. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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 of Schedule 2 to the Regulations

    Peter Emmerton
    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.