Ravi (Migration)

[2017] AATA 1464

Ravi (Migration) [2017] AATA 1464 (21 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harishbabu Ravi

CASE NUMBER:  1514141

DIBP REFERENCE(S):  BCC2015/1285030

MEMBER:R. Skaros

DATE:21 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 21 August 2017 at 3:38pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – Nomination application refused by Department – On review decision to not approve set aside – Nomination now approved

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233, r 1.13A, r 1.13B, r 5.19(4)

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 Immigration to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 4 May 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 of a position in relation to the applicant had not been approved.

6. The applicant appeared before the Tribunal on 16 March 2017 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

11. 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.

12. Empire Bay Service Station Pty Ltd applied for approval of the nominated position of Retail Manager. That nomination was refused by the Department and the nominator applied to the Tribunal for review of that decision. On 21 August 2017 the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

13. The Tribunal is satisfied on the evidence before it that the nominator is the person who will employ the applicant. It is also satisfied that the nomination has been approved and has not been withdrawn.

14. The nominator has advised the Tribunal that there is no adverse information relating to the business or its associates. There is also no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

15. The Tribunal is also satisfied on the evidence, including that which is contained in the related nomination file which is also before the Tribunal, that the position is still available to the applicant and that the visa application was made no more than six months after the nomination was approved.

16. Given the above findings, the Tribunal finds that the applicant meets all requirements of cl.187.233.

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

    DECISION

18. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations.

    R. Skaros
    Member