SHAMSUZZAMAN (Migration)

[2020] AATA 3028

SHAMSUZZAMAN (Migration) [2020] AATA 3028 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SK Shamsuzzaman
Mrs Nowsin Hafiz

CASE NUMBER:  1722595

HOME AFFAIRS REFERENCE(S):          BCC2017/2326210

MEMBER:Katie Malyon

DATE:7 May 2020

PLACE OF DECISION:  Sydney

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 7 May 2020 at 12:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – cook – nomination application refusal approved by tribunal – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

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

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 and Border Protection 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 30 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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 first named applicant - Indian national Mr SK Shamsuzzaman - is seeking the visa in the Temporary Residence Transition stream to continue working in the nominated position of Cook ANZSCO 351411 with his employer Nanak Petroleum Pty Ltd (the Company).

4. The delegate refused to grant the visas on the basis Mr Shamsuzzaman did not meet cl.187.223(2) of Schedule 2 to the Regulations because the Company’s nomination application was refused. A copy of the delegate’s decision was provided to the Tribunal.

5. On 7 May 2020, in an oral decision, the Tribunal approved the related nomination application made under r.5.19(3) of the Regulations by the Company in respect of the position of Cook ANZSCO 351411 for nominee Mr Shamsuzzaman. Accordingly, cl.187.223(2) of Schedule 2 to the Regulations is now met by Mr Shamsuzzaman.

6. Given this finding, the appropriate course is to remit Mr Shamsuzzaman’s Subclass 187 visa application to the Minister to consider remaining criteria for grant of the visa.

7. Mrs Nowsin Hafiz applied for her Subclass 187 visa on the basis of being a member of the family unit of Mr Shamsuzzaman.  As such, her application will be determined by reference to the outcome of Mr Shamsuzzaman’s application on remittal to the Department for reconsideration.

   DECISION

8. 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.

   Katie Malyon

   
   Member

   ATTACHMENT – Extract from the Migration Regulations 1994

   Schedule 2

   ..

   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 (Temporary Work (Skilled)) 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.

   (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.

   oOOo