Tamang (Migration)

[2023] AATA 1826

Tamang (Migration) [2023] AATA 1826 (24 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Narjit Tamang
Mrs Kamala Pun
Miss Parilina Tamang
Master Sohandev Tamang

REPRESENTATIVE:  Mr Biwek Thapa (MARN: 0747526)

CASE NUMBER:  2013353

HOME AFFAIRS REFERENCE(S):          BCC2019/119853

MEMBER:Warren Stooke AM

DATE:24 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant and secondary applicants meet the following criteria for a Subclass 887 visa, respectively:

·cl 887.213 of Schedule 2 to the Regulations; and

·cl 887.311 of Schedule 2 to the Regulations.

Statement made on 24 March 2023 at 6:05pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – 12 months full-time work in a specified regional area – seeking regional employment in Geelong – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 887.111, 887.212, 887.213, 887.221, 887.311

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 on 13 August 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 January 2019. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 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.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl 887.221 of Schedule 2 to the Regulations because the applicant did not satisfy the criteria of work full-time for 35 hours per week in a 12 month period.

4. The applicants appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and provided a copy of the decision to the Tribunal with the application for review. In this regard, the applicant stated that he understood that the reason for the refusal was because the delegate considered that the applicant had not worked in a regional area.

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 has worked full-time in a specified regional area for a total of at least 1 year as the holder of 1 or more of the visas mentioned in clause 887.212.

9. The Tribunal noted to the applicant that his 489 Visa was granted on 4 January 2016 with condition 8539 (Must live/work and study in a regional area) and evidence was provided that the applicant worked from January 2016 to November 2017 at the Southbank Crown Casino and worked outside a regional area prior to lodgement of an 887 visa application on 21 January 2019. The applicant provided evidence that he made multiple applications for regional employment in Geelong, without initial success and continued work his work at Crown pending the acquisition of regional employment to enable the applicant to continue to provide for his family.

10. The applicant was granted a Bridging Visa A on 21 January 2019 with no conditions, which became active after the Skilled Regional Sponsored (Provisional) visa ended on 4 January 2020.

11. The applicant provided evidence that he completed an Advanced Diploma of Business and a Bachelor of Accounting, with a professional year, before completing a Diploma Child Health. In this regard, the applicant stated that he qualified in Nepal as a medical practitioner before coming to Australia.

12. The applicant provided evidence of an initial lease agreement in West Geelong from 27 February 2016 to 6 March 2017, which was the same address for the receipt of an ATO Tax Return from 1 July 2017 to 30 June 2018 and 1 July 2018 to 30 June 2019, together with a tenant ledger from 1 January 2016 to 19 July 2018 and evidence that the applicant had resided in West Geelong continuously to the present time.

13. The applicant provided an AFP report dated 9 January 2019 that stated ‘no disclosable court outcomes’ for the named applicant.

14. The applicant provided evidence of confirmation of full -time employment with Novotel Pty Ltd from 2 January 2017 in the position of Housekeeper Supervisor with Novotel West Geelong, which was stated in correspondence signed by Ms Joanne Showler of Novotel Pty Ltd. The applicant provided evidence that he is still employed by Novotel, Geelong and has been appointed as the Housekeeping Manager.

15. Further, evidence was provided of the payment of wages from Brigalow Nominees Pty Ltd (the employing entity for Novotel Pty Ltd). The employment was also confirmed by payment of wages into a Commonwealth Bank Account from 19 December 2017 to 2 January 2019.

    Work in a regional area

16. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

17. Whilst the applicant confirmed in evidence that he did not work in a regional area from January 2016 to November 2017 and maintained employment at Southbank Crown Casino, the Tribunal accepts that the breach of condition 8539 (Must live/work and study in a regional area) was to enable the applicant to support his family, whilst endeavouring to obtain regional employment in Geelong.  

18. On the basis of the evidence provided to the Tribunal, the Tribunal accepts the applicant’s claims to have worked in a ‘specified regional area’ having regard to the applicable definition in cl 887.111 and that the ‘Designated Areas’ in the Register of Instruments: Skilled visas, included the whole of the state of Victoria.

19. The Tribunal is satisfied on the basis of the evidence that the applicant worked full-time in the specified regional area (being Geelong) for a total of at least 1 year, which is demonstrated from the confirmation of full -time employment with Novotel Pty Ltd from 2 January 2017 in the position of Housekeeper Supervisor with Novotel West Geelong. This was stated in correspondence signed by Ms Joanne Showler of Novotel Pty Ltd and the payment of wages from Brigalow Nominees Pty Ltd (the employing entity for Novotel Pty Ltd and confirmed by the payment of wages into a Commonwealth Bank Account from 19 December 2017 to 2 January 2019.

20. The Tribunal finds that the applicant satisfies cl 887.213.

21. On the basis that the primary applicant has satisfied the criteria for the grant of a for Skilled (Residence) (Class VB) visa, it follows that the secondary applicants are members of a family unit that have satisfied the requirements for the grant of visas.

22. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria.

    DECISION

23. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant and secondary applicants meet the following criteria for a Subclass 887 visa, respectively:

    ·cl 887. 213 of Schedule 2 to the Regulations; and

    ·cl 887. 311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member