Sharma (Migration) [2022] AATA 4289 (30 November 2022)

Last Updated: 14 December 2022

Sharma (Migration) [2022] AATA 4289 (30 November 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Santosh Sharma
Master Mohit Sharma
Mr Parvesh Kumar Kumar
Master Rohit Sharma

REPRESENTATIVE: Mrs Simone Louise Kearney (MARN: 1173899)

CASE NUMBER: 1919662

HOME AFFAIRS REFERENCE(S): BCC2019/1985321

MEMBER: Jade Murphy

DATE: 30 November 2022

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the applications 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.

Statement made on 30 November 2022 at 3:48pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(1)

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 18 April 2019. 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 Cook (ANZSCO 351411).
5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(1) of Schedule 2 to the Regulations as the relevant nomination was refused by a delegate for the Minister of Home Affairs on 19 June 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.
6. The applicants were represented in relation to the review.
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 position to which the application relates is the subject of an approved nomination.

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 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 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. On 19 June 2019, the nomination lodged by BC & WL Murley, being the nomination referred to in paragraph 187.233(1), was refused by a delegate for the Minister of Home Affairs.
12. On 2 July 2019, BC & WL Murley, lodged an application for review with the Tribunal.
13. On 30 November 2022, the Tribunal set aside the Department’s decision refusing the nomination application and substituted a new decision approving the nomination.
14. As the nomination (the one referred to in paragraph 187.233(1)) has now been approved the Tribunal finds that the position to which the application relates is the subject of an approved nomination.
15. Therefore, cl 187.233 is met.
16. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

DECISION

17. The Tribunal remits the applications 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.

Jade Murphy
Member

ATTACHMENT A

187.233 (1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Direct Entry stream; and

(iii) seeks to meet the requirements of subregulation 5.19(12); 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.