Arora (Migration)

[2020] AATA 5350

Arora (Migration) [2020] AATA 5350 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rohit Arora
Ms Monika

CASE NUMBER:  1929610

HOME AFFAIRS REFERENCE(S):          BCC2019/2643115

MEMBER:Wan Shum

DATE:23 December 2020

PLACE OF DECISION:  Sydney

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.187.223 of Schedule 2 to the Regulations.

Statement made on 23 December 2020 at 3:21pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Restaurant Manager – subject of an approved nomination – adverse information – anonymous allegations not supported – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 187.223

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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the Subclass 187 visas on 21 May 2019.

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Restaurant Manager. The related nomination was made by GJA Kalra Pty Ltd (the nominator) on 1 May 2019.

5. On 12 September 2019, a delegate decided not to approve the nomination and, as a consequence, the Subclass 187 visas were refused because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations.

6. Both the nominator and the applicants have sought review of these decisions and were initially represented in relation to the review by the same registered migration agent, but the nominator subsequently appointed a different representative. There were multiple nomination applications made by the nominator which were considered concurrently by the same Tribunal.

7. The Tribunal approved the nomination relevant to this matter on 22 December 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position to which the application relates has been approved. The nomination of the position must have identified the visa applicant and be in the Temporary Residence Transition stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

10. On the visa application, the applicant provided details of a related nomination with Transaction Reference Number EGOLRTQSF9, which refers to the nomination made by the nominator for the position of Restaurant Manager. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence: “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

11. On 22 December 2020, the Tribunal made a decision to approve the nomination relevant to the visa application the subject of this review.

12. Therefore, cl.187.223(2) is now met.

13. In addition, this criterion also requires that:

    ·the nomination 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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in r.5.19)

    ·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. At the time of this decision, the nomination has not been withdrawn. The applicant is currently employed by the nominator, and the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

15. The Tribunal was given information from the Department on 10 July 2020 that there were three allegations from 2015 and 2016, alleging that the nominating business was being paid and/or requesting cash for visas. The information was considered when the application for approval of the nomination was reviewed. While cash for visa activities would be adverse information, the allegations are anonymous and monitoring was undertaken by the Department around the time of the allegations which did not reveal any evidence to support the allegations. Nor has any other evidence come to light since that time. Given this, the Tribunal did not consider that the allegations amount to ‘adverse information’ (as defined) and finds that there is no adverse information known to Immigration about the nominator or person associated with the nominator. There is no other information before the Tribunal which would meet the definition of ‘adverse information’. The Tribunal thus finds that there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person. 

16. Therefore, all of the requirements of cl.187.223 are now 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 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.187.223 of Schedule 2 to the Regulations.

    Wan Shum
    Member