Takhar (Migration)

[2020] AATA 4439

Takhar (Migration) [2020] AATA 4439 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ranbir Singh Takhar
Mrs Ramandeep Kaur
Master Manbir Singh Takhar

CASE NUMBER:  1805785

HOME AFFAIRS REFERENCE(S):          BCC2016/3067424

MEMBER:Susan Trotter

DATE:16 October 2020

PLACE OF DECISION:  Brisbane

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(3) of Schedule 2 to the Regulations

Statement made on 16 October 2020 at 4:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – Tribunal’s consideration restricted to issue subject of delegate’s adverse decision – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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) visas under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visas on 2 March 2018.

2. The applicants applied for the visas on 15 September 2016. 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 the Direct Entry stream, to work in the nominated position of Retail Manager (General) for Golden Lee International Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination. The delegate found that the relevant nomination application had been refused on 24 January 2018 and that accordingly the applicant did not satisfy cl.187.233 as required.

6. The delegate also found that the other applicants (the first-named applicant’s wife and son) could not be granted Subclass 187 visas, as they did not meet the secondary visa criteria (cl.187.311) requiring them each to be a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary visa criteria, and they did not claim to meet, nor was there evidence that they met, the primary visa criteria in their own right.

7. The applicants lodged an application with the Tribunal on 5 March 2018.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear before the Tribunal.

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

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

    DECISION

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. Clause 187.233(3) is one of the essential criteria that must be met. It requires that the position to which the application relates is the subject of an application for approval of a nomination, which nomination has been approved.

13. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to have the position of Retail Manager (General) approved, with the applicant as the nominee, with the Department on 15 September 2016. The nomination application was refused on 24 January 2018 and the nominator sought review of that decision with the Tribunal on 8 February 2018.

14. On 13 October 2020, the Tribunal set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

15. Therefore, cl.187.233(3) is now met in relation to the applicant.

16. As the secondary applicants applied on the basis that they are each a member of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

    Conclusion

17. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visas.

18. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction - Conducting Migration and Refugee Reviews (1 August 2018), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    DECISION

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

    Susan Trotter
    Member