1502677 (Migration)

[2016] AATA 3507

1502677 (Migration) [2016] AATA 3507 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Gurpreet Kaur Sandhu

CASE NUMBER:  1502677

DIBP REFERENCE(S):  BCC2014/2004312

MEMBER:Brook Hely

DATE:11 March 2016

PLACE OF DECISION:  Melbourne

DECISION: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 of Schedule 2 to the Regulations.

Statement made on 11 March 2016 at 3:56pm

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 14 August 2014. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General). 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 visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the relevant nomination had not been approved.

6. The applicant appeared before the Tribunal on 4 March 2016 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

7. 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

8. 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.

9. 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.

10. On 14 August 2014, the applicant’s employer, Akaal Sahai Pty Ltd ATF Ajooni Mand (‘Akaal’) applied to the Department for approval of a nomination in relation to the position of Retail Manager (General). On 14 August 2014, the applicant lodged the present visa application with the Department on the basis of having been nominated by Akaal for this position.

11. On 1 December 2014, the Department refused the nomination application by Akaal. On 10 December 2014, Akaal applied to the Tribunal for review of that decision (Case Number 1420172). On 4 March  2016, the Tribunal held a hearing in relation to the approval of the nomination and, on 11 March 2016, the Tribunal set aside the delegate’s decision and substituted a new decision approving the nomination.

12. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made.  The Tribunal finds that the position to which the application relates is that of Retail Manager (General), being the same as that nominated by the employer sponsor under the requirements of subparagraph 5.19(4)(h)(ii), and in relation to the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1.  The Tribunal is therefore satisfied that the applicant meets cl.187.233(1).

13. The Tribunal is satisfied, on the documentary before it and on the basis of the evidence provided in connection with Akaal’s review application, that the person who will employ the applicant is the nominator in the application for approval, namely Akaal. The applicant therefore meets cl.187.233(2).

14. Having regard to the Tribunal’s decision to approve Akaal’s nomination, the Tribunal finds that the nomination is approved and the applicant therefore meets cl.187.233(3). The Tribunal also accepts from this evidence that the nomination for the position has not been withdrawn, and that the position is still available to the applicant.  The Tribunal is therefore satisfied that the applicant meets cl.187.233(4) and cl.187.233(5) respectively.

15. The application for the visa was made on a date before the nomination was approved. It follows that the visa application was made on a date which is not more than 6 months after the approval and, accordingly, the applicant meets cl.187.233(6).

16. Therefore, overall cl.187.233 is met.

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

    DECISION

18. 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 of Schedule 2 to the Regulations.

    Brook Hely
    Member