Anmoldeep Singh (Migration)

[2018] AATA 5372

Anmoldeep Singh (Migration) [2018] AATA 5372 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anmoldeep Singh

CASE NUMBER:  1621361

HOME AFFAIRS REFERENCE(S):           BCC2016/318193

MEMBER:Mr S Norman

DATE:7 November 2018

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations

Statement made on 07 November 2018 at 1:20pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination application now approved by Tribunal – 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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The Department decision was lodged with the Tribunal.

2. The applicant applied for the visa on 21 January 2016. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry 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 (Gen) (ANZSCO: 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application had been refused.

6. The applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the Director of the nominating business (Mr Pankaj MONGA). The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his 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

8. The issue in the present case is whether the applicant meets cl.187.233 or cl187.242 of Schedule 2 to the Regulations.

   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 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. 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 21 January 2016, the applicant lodged an application for a Regional Employer Nomination (class RN) Regional Employer Nomination (subclass 187) visa under the Direct Entry Stream. After considering the evidence, the delegate was not satisfied the applicant met cl.187.233(3). That relevantly stated:

    187.233

    …..

    (3)The Minister has approved the nomination…

11. In their decision, the delegate noted that on 26 October 2016 a decision was made to refuse the nomination application lodged by the nominator (SRS Capital P/L). The applicant/nominee was advised on the same day of this decision and provided with an opportunity to comment within the prescribed period. At the date of the delegate’s decision, no response had been received. As the nomination application had not been approved, the delegate was not satisfied cl.187.233(3) had been met; and that accordingly, the applicant did not satisfy cl.187.233. Therefore, the delegate refused to grant the Regional Sponsored Migration scheme (subclass 187) visa in the Direct Entry stream.

12. Next, in accordance with the Regulations, the applicant’s case was considered under the Temporary Residence Transition Stream. However, under cl.187.223, the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination approval had been refused, the delegate was not satisfied the applicant’s visa application met this criteria (being cl.187.223). Therefore, the delegate was not satisfied the criteria for the Regional Sponsored Migration scheme (subclass 187) visa in the Temporary Residence Transition Stream were not met.

13. Next, the delegate assessed the application under the Agreement stream. However, as the nomination approval was not nominated by an employer in accordance with a Labour Agreement, the delegate was not satisfied the applicant’s visa application met the requirements of cl.187.242. The delegate then refused to grant the applicant the Regional Sponsored Migration Scheme (subclass 187) visa in the Agreement stream.

14. The Tribunal had subsequently approved the related nomination approval for this case on 7 November 2018 (being AAT # 1618383).  Therefore, the applicant now satisfied this criteria for the visa. Based on the evidence set out in AAT # 161838, the Tribunal is satisfied the person who will employ the applicant is the person who made the nomination; that the nomination has been approved and has not been subsequently withdrawn; that 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); that the position is still available to the applicant (and the Tribunal accepts the applicant is currently employed in the nominated position); and that the visa application was made no more than six months after the nomination of the position was approved (the visa application was made 21 January 2016 and the nomination approval application was granted on 7 November 2018).

15. Therefore, cl.187.233(3) is met.

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

    DECISION

17. 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(3) of Schedule 2 to the Regulations

    Mr S Norman
    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

    (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.