Sharma (Migration)

[2023] AATA 2082

Sharma (Migration) [2023] AATA 2082 (3 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajay Sharma

REPRESENTATIVE:  Mr Mark Glazbrook (MARN: 0100185)

CASE NUMBER:  1930802

HOME AFFAIRS REFERENCE(S):          BCC2018/966566

MEMBER:Karen McNamara

DATE:3 July 2023

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(3) of Schedule 2 to the Regulations.

Statement made on 03 July 2023 at 1:52pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – occupation of Retail Manager (General) – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 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 Mr Ajay Sharma (the applicant) a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 February 2018. 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 (Cth) (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Store Manager under the occupation of Retail Manager (General) ANZSCO 142111.

5. On 17 October 2019, the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, because on 12 September 2019, the nomination application lodged by Air Voice Group Pty Ltd, was refused by a delegate of the Minister for Home Affairs.

6. The applicant applied to the Tribunal on 30 October 2019, for review of the delegate’s decision. The review application was accompanied by a copy of the delegate’s decision.

7. On 11 May 2023, Mr Ajay Sharma appeared before the Tribunal via Microsoft Teams Video, to give evidence and present arguments. The Tribunal also received oral evidence from        Mr Jenish Shah (the nominator) in the related matter for the nomination review (AAT Case file 1927745).

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, 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 video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

14. The nominating employer, Air Voice Group Pty Ltd, applied to the Department for approval of a nomination in relation to the occupation of Retail Manager (General) ANZSCO 142111. That nomination was refused by the Department and consequently the applicant’s visa application was refused.

15. Air Voice Group Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1927745). On 3 July 2023, 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.

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

    DECISION

17. 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(3) of Schedule 2 to the Regulations.

    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.