Sujan (Migration)

[2023] AATA 1420

Sujan (Migration) [2023] AATA 1420 (28 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Neupane Sujan
Ms Koirala Pratima

CASE NUMBER:  1928465

HOME AFFAIRS REFERENCE(S):          BCC2018/1005024

MEMBER:Amanda Mendes Da Costa

DATE:28 April 2023

PLACE OF DECISION:  Melbourne

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.

The Tribunal considers that the second named applicant meets the secondary requirements for the grant of a Subclass 187 (Regional Sponsored Migration Scheme) visa.

Statement made on 28 April 2023 at 8.49am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Hotel or Motel Manager – approved nomination – position is still available to the applicant –subject of an approved nomination – member of the family unit of the applicant –decision under review remitted  

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.13, 5.19, 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 (Cth) (the Act).

2. The applicants applied for the visas on 2 March 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Hotel or Motel Manager (ANZSCO 141311).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 the applicant meets the requirements of cl 187.233 of Schedule 2 to the Regulations.

   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 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 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.

11. The Tribunal notes that Australian Motels and Hotels Pty Ltd ATF Australian Motels and Hotels Unit Trust (the nominator) made an application for approval of a nomination for the position of Hotel or Motel Manager for the applicant.  A delegate of the Minister did not grant that application  and the nominator subsequently lodged an application with this Tribunal for review of that decision.  On 27 April 2023 the Tribunal set aside the delegate’s decision and substituted its own decision to approve the nomination application.  The Tribunal is therefore satisfied that the applicant is the subject of an approved nomination for the position of Hotel or Motel Manager. 

12. Based on the evidence before it, the Tribunal is further satisfied 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.

13. Therefore, cl 187.233 is met.

14. Given its findings regarding the applicant, the Tribunal is satisfied that the second named applicant meets the secondary requirements for the grant of the visa.

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

    DECISION

16. 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.

17. The Tribunal considers that the second named applicant meets the secondary requirements for the grant of a Subclass 187 (Regional Sponsored Migration Scheme) visa.

    Amanda Mendes Da Costa
    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.