Sachdeva (Migration)

[2020] AATA 4807

Sachdeva (Migration) [2020] AATA 4807 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Priyanka Sachdeva
Mr David Patrick St John Cameron

CASE NUMBER:  1807365

HOME AFFAIRS REFERENCE(S):          BCC2017/1145884

MEMBER:Susan Hoffman

DATE:27 October 2020

PLACE OF DECISION:  Perth

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 27 October 2020 at 11:30am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 24 March 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 Office Manager (ANZSCO code 512111). The nomination application was lodged by Gosavi Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations on the basis that the nomination made by Gosavi Pty Ltd had been withdrawn by a delegate of the Minister.

6. The applicants appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. They were represented in relation to the review by their registered migration agent, Mrs Nisha Melwani from Ultrafast Migrations Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination linked to this visa application.

   Nomination of a position

9. 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.

10. 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.

11. The nomination application associated with this visa application was lodged by Gosavi Pty Ltd. The person who will employ the applicant is Mr Badri Gosavi who is a director of Gosavi Pty Ltd and lodged the nomination application on behalf of Gosavi Pty Ltd.

12. The nomination application was refused by a delegate of the Minister. That decision was reviewed by this Tribunal. On 27 October 2020, the Tribunal decided to set that decision aside and replace it with a decision approving the nomination.

13. The Tribunal is satisfied that the nomination made in relation to Mrs Sachdeva has not been withdrawn because of the submissions made on behalf of Gosavi Pty Ltd in relation to the nomination which make it clear that Mrs Sachdeva is a valued member of staff, relied upon by Mr Gosavi.

14. Mrs Sachdeva said that she had been working full time as an office manager for Gosavi Pty Ltd since February 2020 and was paid $55,000 a year.

15. Given the evidence before it, the Tribunal is satisfied that the position is still open to the applicant and has not been withdrawn.

16. There is no evidence before the Tribunal of any adverse information known to Immigration about the person who made the nomination, or a person associated with that person.

17. As the nomination was approved on 27 October 2020, and the visa application was made on 24 March 2017, the Tribunal is satisfied that the visa application was not made more than six months after the nomination of the position was approved.

18. Therefore, cl.187.233 is met.

    CONCLUDING PARAGRAPH

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

    DECISION

20. 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 of Schedule 2 to the Regulations.

    Susan Hoffman
    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.