1413993 (Migration)

[2016] AATA 3506

1413993 (Migration) [2016] AATA 3506 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rachneel Kour Rissam
Mr Randeep Singh Rissam
Master Brahmman Singh Rissam

CASE NUMBER:  1413993

DIBP REFERENCE(S):  BCC2013/1904307

MEMBER:Alison Mercer

DATE:15 March 2016

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.

Statement made on 15 March 2016 at 3:08pm

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 Immigration 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 to the Department of Immigration for the visas on 20 November 2013. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Training Officer. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as she was not the subject of an approved nomination. The delegate noted that the nomination application made by her prospective employer, Narrandera Christian Revival Crusade, had been rejected by the Department on 4 July 2014. The delegate found that the applicant did not meet an essential criterion for the grant of a subclass 187 visa. The delegate rejected the visa applications of the second and third named applicants (the husband and son of the applicant) as well, as they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary criteria in their own right.

6. The Tribunal received a review application from the applicants  on 15 August 2014.  It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Tony Dyson, to be their representative and authorised recipient for correspondence for the purposes of the review.

7. The applicant appeared before the Tribunal on 19 August 2015 to give evidence. In addition, she gave evidence as a witness in the related hearing dealing with the review of the rejection of her prospective employer’s nomination application, held on the same date.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

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 r.1.13A and r.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 Department’s records indicate that the Department refused to approve a nomination application for the position of Training Officer in relation to the applicant, made by her prospective employer, Narrandera Christian Revival Crusade, on 4 July 2014.

12. The nominating employer lodged an application for review of that decision with the Tribunal on 14 July 2014 in relation to that decision.  On 15 March 2016, the Tribunal set aside the Department’s decision and substituted its decision to approve the nomination, albeit in another occupation (Welfare Support Worker): MRT decision 1412774 of 15 March 2016.

13. Accordingly, and based on the material provided to the Tribunal by the nominating employer in relation to its review, the Tribunal is satisfied that:

    ·the person (that is, the organisation) that will employ the applicant was the nominator in the application for approval;

    ·the appointment has been approved under r.5.19;

    ·it has not been withdrawn and at the time of decision, the criteria for approval in r.5.19(4) continue to be met;

    ·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.

14. Therefore, the Tribunal finds that cl.187.233 is met.

15. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second and third named applicants applied on the basis of being family unit members of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department.

    DECISION

16. The Tribunal remits the applications 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.

    Alison Mercer
    Member