Raval (Migration)

[2020] AATA 5301

Raval (Migration) [2020] AATA 5301 (15 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tejaskumar Rajendrakumar Raval
Mrs Sejalben Tejaskumar Raval
Miss Siya Tejaskumar Raval
Master Bhavya Tejaskumar Raval

CASE NUMBER:  1804221

HOME AFFAIRS REFERENCE(S):          BCC2017/2268025

MEMBER:Mr S Norman

DATE:15 December 2020

PLACE OF DECISION:  Melbourne

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.187.223(2) of Schedule 2 to the Regulations

Statement made on 15 December 2020 at 1:28pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – refusal of related position nomination set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 27 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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.

3. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Airconditioning and Reirrigation Mechanic (ANZSCO: 342111).

4. The delegate refused to grant the visas because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations.

5. The (first named) applicant appeared before the Tribunal on 11 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the former owner of the applicant company (Mr Haddadi) and also from the representative of the associated nominator.

6. 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. After then discussing the claims at hearing, the Tribunal is satisfied the applicant was given a meaningful opportunity 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

   Nomination of a position

8. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.  

9. In their decision, the delegate said that on 3 January 2018, the nomination lodged by SA INDUSTRIAL SERVICES NSW PTY LTD ATF ELREP SERVICES TRUST, being the nomination referred to in paragraph 187.223(1), was refused. As the nomination had been refused, cl.187.223(2); and cl.187.223 was not met.

10. After some further discussion and findings (including about membership of the family unit), the delegate refused to grant the applicants a Regional Employer Nomination Scheme (subclass 187) visa.

11. On 15 December 2020, the Tribunal approved the nomination application lodged by the applicant’s associated nominator (SA INDUSTRIAL SERVICES NSW PTY LTD now trading as Noorco Pty Ltd).  Therefore, cl.187.223(2) is met.

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

    DECISION

13. 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.187.223(2) of Schedule 2 to the Regulations

    Mr S Norman
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position to which the application relates is located in regional Australia.

    (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.