SHAH (Migration)

[2020] AATA 4693

SHAH (Migration) [2020] AATA 4693 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajanisha Prakash SHAH
Mr Prakash Dineshbhai SHAH
Mr Pakshal Prakashkumar SHAH
Mr Kush Prakashbhai SHAH

CASE NUMBER:  1803971

HOME AFFAIRS REFERENCE(S):          BCC2017/545304

MEMBER:Karen McNamara

DATE:10 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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

·The Tribunal does not have jurisdiction in this matter in relation to the third named applicant.

Statement made on 10 November 2020 at 11:56am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (ANZSCO 142111) – tribunal set aside nomination refusal – no jurisdiction with third applicant offshore at time of visa and review application – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(2), 347(2)(a), 347(3)

Migration Regulations 1994, Schedule 2, cl 187.233(3), rr 1.13A, 1.13B, 5.19

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 9 February 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 Mrs Rajanisha Prakash Shah (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO 142111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, because on 3 January 2018, the nomination application lodged by Hong Kong Village Goulburn Pty Ltd was refused by a delegate of the Minister for Immigration and Border Protection.

6. On 7 October 2020, the applicants represented by Mrs Rajanisha Prakash Shah
   appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zhi Meng Huang (the nominator) in the related matter for the nomination review application (AAT Case file 1801524). The related matters were heard concurrently in a combined hearing.

7. 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 applicants. 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 applicants were given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

11. 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.

12. 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.

13. The nominating employer, Hong Kong Village Goulburn Pty Ltd applied to the Department of Immigration and Border Protection for approval of a nomination in relation to the position of Retail Manager (ANZSCO 142111). That nomination was refused by the Department and consequently the applicants visa applications were refused.

14. Hong Kong Village Goulburn Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1801524). On 6 November 2020, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

15. The second named applicant (Mr Prakash Dineshbhai Shah), third named applicant (Mr Pakshal Prakashkumar Shah) and fourth named applicant (Mr Kush Prakashbhai Shah), applied on the basis of being a member of the family unit of the first named applicant (Mrs Rajanisha Prakash Shah). The application by Mr Prakash Dineshbhai Shah and Mr Kush Prakashbhai Shah will be determined by reference to the outcome of Mrs Rajanisha Prakash Shah’s application on remittal to the Department for consideration.

    Jurisdiction in relation to the third named applicant

16. Section 347(2) of the Act, specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

17. Department records indicate the third named applicant (Mr Pakshal Prakashkumar Shah), was off shore at the time of the primary decision on 9 February 2018 and at the time the application for review was lodged on 15 February 2018. In the circumstances, the Tribunal finds that Mr Pakshal Prakashkumar Shah was not in the migration zone at the relevant time. 

18. The Tribunal further notes that the decision record provided to the Tribunal by the applicants, records that in regard to the third named applicant ‘there is no right of merits review for this decision’.

19. As such the application for review made by Mr Pakshal Prakashkumar Shah does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the third named applicant.

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

    DECISION

21. The Tribunal remits the applications 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

    The Tribunal does not have jurisdiction in this matter in relation to the third named applicant.

    Karen McNamara
    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.