Vahora (Migration)

[2020] AATA 4159

Vahora (Migration) [2020] AATA 4159 (25 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shahnavaz Sirajbhai Vahora
Mrs Tehrin Anvarbhai Vora

CASE NUMBER:  1804515

HOME AFFAIRS REFERENCE(S):          BCC2016/1798380

MEMBER:Susan Trotter

DATE:25 September 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 25 September 2020 at 6:35pm

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 – 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) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 May 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 Direct Entry stream, to work in the nominated position of Retail Manager (General) for Zeel Enterprises Pty ltd ATF Shastri Family Trust No 2 for its Foodworks grocery store business.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because, which required him to be the subject of an approved nomination. The delegate found that the relevant nomination application had been refused on 10 January 2018 and that accordingly the applicant did not satisfy cl.187.233(3) and did not meet cl.187.233 as a whole as required.

6. The delegate also found that the other applicants (identified as the first-named applicant’s husband and children in the visa application) 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 there was no evidence that they met the primary visa criteria in their own right.

7. The applicants lodged an application with the Tribunal on 21 February 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 a representative of 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. 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 applicant’s employer, Zeel Enterprises Pty Ltd ATF Shastri Family Trust No 2, made an application to have the position of Retail Manager (General) approved, with the applicant as the nominee, with the Department on 20 May 2016. The nomination application was refused on 10 January 2018 and Zeel Enterprises Pty Ltd ATF Shastri Family Trust No 2 sought review of that decision with the Tribunal on 23 January 2018.

14. On 23 September 2020, the Tribunal set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Zeel Enterprises Pty Ltd ATF Shastri Family Trust No 2.

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 visa application to the Minister to consider the remaining criteria for the visa.

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 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.

    Susan Trotter

    Member