Amardeep Singh (Migration)

[2020] AATA 4164

Amardeep Singh (Migration) [2020] AATA 4164 (1 October 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Amardeep Singh Mrs Satbir Kaur Sidhu

CASE NUMBER:  1806148

HOME AFFAIRS REFERENCE(S):          BCC2016/4191101

MEMBER:  Marten Kennedy

DATE:  1 October 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits both 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(3) of Schedule 2 to the Regulations

Statement made on 1 October 2020 at 11:48am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – 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

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).

1. The applicants applied for the visas on 12 December 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. 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 for his employer Korat Pty Ltd.

1. The delegate refused to grant the visa to the first-named applicant because the applicant did not meet cl.187.233 (among other criteria) of Schedule 2 to the Regulations because the Minister had refused the corresponding nomination. The delegate refused to grant the visa to the second-named applicant as a consequence of the first-named applicant not meeting the primary criteria for the visa.

1. 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.

1. In addition, this criterion also requires that the nomination has been approved and has not been subsequently withdrawn.

1. In matter 1806148 I set aside the decision to refuse to approve the corresponding nomination application and substituted a decision to approve the nomination. My reasons for doing so are set out in my decision record for that matter.

1. Given these findings, the appropriate course is to remit both visa application to the Minister to consider the remaining criteria for the visa for the primary visa applicant, and also for the secondary visa applicant.

DECISION

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(3) of Schedule 2 to the Regulations

Marten Kennedy Member

ATTACHMENT A

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

(a)nominated in an application for approval that seeks to meet the requirements of:

(i)subparagraph 5.19(4)(h)(ii); or

(ii)subregulation 5.19(4) as in force before 1 July 2012; and

(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.