Sharma Sapkota (Migration)

[2019] AATA 4927

Sharma Sapkota (Migration) [2019] AATA 4927 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Goma Sharma Sapkota
Mr Ashok Sapkota

CASE NUMBER:  1811867

HOME AFFAIRS REFERENCE(S):           BCC2017/1331945

MEMBER:Andrew George

DATE:11 November 2019

PLACE OF DECISION:  Darwin

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 of Schedule 2 to the Regulations.

Statement made on 11 September 2019 at 11:58am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Hairdresser – subject of an approved nomination – adverse information – secondary applicant’s criminal convictions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.13B; Schedule 2, cl 187.223

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 10 April 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 Temporary Residence Transition stream, to work in the nominated position of Hairdresser – 391111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223(2) of Schedule 2 to the Regulations because “On 09/03/2018 the Nomination application underpinning your visa application bearing Transaction Reference Number EGOECAG8RN was refused by a delegate of the Minister”.

6. The applicant appeared before the Tribunal on 11 July 2019 to give evidence and present arguments. This was a combined hearing with two nominations, being cases 1703832 and 1807122. The Tribunal also received oral evidence from Mrs Sarasawati Sapkota who is the proprietor of the nominating business, Sunsil Hair Design.

7. The applicants were represented in relation to the review by their 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

   Licensing, registration and membership requirements

9. Clause 187.211 applies to all primary applicants if it is mandatory in the State or Territory where the nominated position is located to hold a licence, registration or membership of a professional body to undertake the tasks of a kind to be performed in the occupation to which the position relates. In these cases, the applicant must hold, or be eligible to hold such a licence, registration or membership at the time of the visa application.

10. The Tribunal notes the successful Migration Skills Assessment Application Result by Trades Recognition Australia dated 21 October 2009. Notwithstanding this, there is no evidence before the Tribunal that the nominated occupation of Hairdresser – 391111 requires licensing, registration, or membership in the Northern Territory. Therefore, cl.187.211 is not applicable.

    Employment will be provided

11. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application. For the reasons contained in case number 1703832 at paragraphs [19]-[20] and case number 1807122 at paragraph [11], the Tribunal is satisfied that the nominated position will provide the applicant with the employment. Therefore, cl.187.212 is met.

    Whether the applicant has engaged in conduct in contravention of the Act

12. An applicant meets cl.187.212A(a) if they have not, in the previous 3 years, engaged in conduct that constitutes a contravention of ss.245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act. In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or providing a benefit, in return for the occurrence of a sponsorship-related event. The meanings of ‘benefit’ and ‘sponsorship-related event’ in this context are provided under s.245AQ of the Act. Alternatively, where the applicant has engaged in such conduct in the previous 3 years, an applicant may satisfy cl.187.212A(b) if it is reasonable to disregard that conduct.

13. There is no evidence before the Tribunal to indicate that the applicant has engaged in contravention of the Act. Therefore, cl.187.212A is met.

    Age requirements

14. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either meet certain age requirements, or be in a class of persons specified in the relevant instrument: cl.187.221. In this case, as the visa application was made before 18 March 2018, the applicant must not have turned 50 at the time of application. In the present case the applicant’s birth certificate states that she was born on 6 November 1983.  Therefore, cl.187.221 is met.

    English language proficiency

15. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have defined level of English language proficiency, or be in a class of persons specified in a relevant instrument: cl.187.222. For visa applications made before 1 July 2017 the level required is vocational English and for visa applications made on or after 1 July 2017 the level required is competent English.

16. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score, or

    ·holds a specified passport.

17. In this instance, having regard to the date of visa application, the required level is vocational English. The Tribunal notes letters from Rammani Multiple Campus school dated 10 June 2016 and Paramount Boarding Higher Secondary school dated 2 June 2016. Both of these schools are in Nepal. From the Paramount Boarding Higher Secondary school correspondence, the Tribunal is satisfied that the applicant undertook her education in a secondary school outside Australia where all the instruction was in English. Therefore, cl.187.222 is met.

    Nomination of a position

18. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

19. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn.

    ·the position is still available to the applicant.

    ·the visa application was made no more than six months after the nomination of the position was approved.

    ·the position is located in regional Australia (as defined in r.5.19).

    ·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.

20. From the decisions in case numbers 1703832 and 1807122, the Tribunal is satisfied that the nomination was approved on 10 November 2019 and has not subsequently been withdrawn. The Tribunal is also satisfied that the position is still available to the applicant and that the visa application was also made no more than six months after the nomination of the position was approved. The position is located in the Northern Territory, which is regional Australia.

21. The Tribunal has noted the applicant’s National Police Certificate dated 12 July 2016 and her police check dated 20 April 2016 by the Government of Nepal. The Tribunal is satisfied that no adverse information is known to Immigration about the applicant. Given the lack of any evidence to the contrary, the Tribunal is also satisfied that there is no adverse information known to Immigration about the person who made the nomination.

22. The Tribunal is troubled by the criminal convictions of the secondary applicant, Mr Ashok Sapkota, contained in his National Police Certificate dated 29 July 2016. These convictions are for drive without due care, not stop after accident, and drive high range blood alcohol content. Mr Sapkota is ‘associated with’ the applicant within the meaning of r.1.13B(1). Given that it does not seem to the Tribunal that the applicant was involved in the commission of Mr Sapkota’s crimes, the Tribunal considers it reasonable to disregard this information with regard to her application. The Tribunal stresses, however, that it has not also found that it is reasonable to disregard this adverse information with regard to the secondary applicant’s application.

23. Therefore, cl.187.223 is met.

24. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. The Tribunal recommends that its findings with regard to the applicant are taken into account when reconsidering the secondary applicant’s visa application. The Tribunal also recommends that its concerns with regard to the secondary applicant’s criminality should be noted when reconsidering his application.

    DECISION

25. 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 of Schedule 2 to the Regulations.

    Andrew George
    Member

    
    

    ATTACHMENT A

    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 … 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.

    (3A)    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.

    (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.