1512421 (Migration)

[2016] AATA 3262

1512421 (Migration) [2016] AATA 3262 (15 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Jaswinder Kaur
Mr Attinder Jit Singh
Miss Samreen Kaur

CASE NUMBER:  1512421

DIBP REFERENCE(S):  BCC2015/1244200

MEMBER:Christopher Smolicz

DATE:15 February 2016

PLACE OF DECISION:  Adelaide

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.

The Tribunal has no jurisdiction with respect to the third named applicant.

Statement made on 15 February 2016 at 11:56am

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 29 April 2015. 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 Retail Manager (ANZSCO 142111).

5. 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.

6. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.

7. The applicants appeared before the Tribunal on 28 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsoring employer Mr Harsh Makadia.  The applicants were represented in relation to the review by their registered migration agent.

8. Mrs Kaur told the Tribunal that her daughter, the third named applicant was born on 9 September 2013 and departed Australia on 9 April 2014 and is being cared for by her grandmother in India.

9. The Tribunal raised with the applicant that it did not have jurisdiction in relation to the applicant’s daughter, the third named applicant.  The Tribunal noted that the third named applicant was born in Australia on 9 September 2013 and departed Australia on 9 April 2014. The Tribunal advised Mrs Kaur at the hearing that it did not have jurisdiction in relation to the third named applicant because they were offshore at the time of visa application (s.338(2)) and at the time of lodging the review application (s.347(2)). The applicant did not dispute the Tribunal’s finding. Consequently, the Tribunal finds that it does not have jurisdiction in relation to the third named applicant.

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 evidence of an approved appointment.

    Nomination of a position

12. 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.

13. 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.

14. On 22 January 2015 the applicant’s nominating employer, Aaran Group (WA) Pty Ltd ATF Harkrish Family Trust, applied to the Department for the approval of the position of Retail Manager.

15. On 3 June 2015 the Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision.

16. On 15 February 2016, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the sponsoring employer Aaran Group (WA) Pty Ltd ATF Harkrish Family Trust.[1]

    [1] See MRD decision file ref.1508205

17. On the evidence before it, the Tribunal is satisfied that:

    ·the person who 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(3) continue to be met;

    ·the appointment 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.

18. Accordingly, given the Tribunal’s findings in respect of subclauses 187.223(1), (2), (3), (4), (5) and (6), the Tribunal finds that the applicant meets the requirements of clause 187.223.

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

    DECISION

20. 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.

21. The Tribunal has no jurisdiction with respect to the third named applicant.

    Christopher Smolicz
    Member