BHATTI (Migration)

[2020] AATA 5685

BHATTI (Migration) [2020] AATA 5685 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs PRITPAL KAUR BHATTI
Mr JASPAL SINGH
Ms MEHAK PREET KAUR
Mr SAHIB PREET SINGH

CASE NUMBER:  1810893

HOME AFFAIRS REFERENCE(S):          BCC2016/2892323

MEMBER:Danielle Galvin

DATE:30 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the 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 of Schedule 2 to the Regulations; and

Statement made on 30 November 2020 at 10:00am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Child Care Worker – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 31 August 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 first named applicant (the visa applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Child Care Worker (ANZSCO Code no. 421111).

5. The delegate refused to grant the visas because the visa applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the department had previously made a decision on 8 March 2018 refusing the nomination of AFFINITY EDUCATION GROUP PTY LTD trading as Palmerston Early Learning Centre. The consequence was that there was no approved nomination in place to support the granting of the visas.

6. On 24 November 2020 the Tribunal set aside the decision of the Department finding that the nomination was approved.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 there is an approved nomination in place.

   Nomination of a position

10. 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.

11. 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.

12. The Tribunal has had regard to the material provided by the Department in the application, as well as the material provided to the Tribunal.  The Tribunal has also had regard to the decision dated 24 November 2020, in proceeding number 1806593, AFFINITY EDUCATION GROUP LIMITED (AFFINITY), which is directly relevant to this case. Taking into account the information in the application form and attached to the application, the position to which the application relates is now the subject of an approved nomination in the Direct Entry stream, is located in regional Australia, namely N.T., and is the position that was the subject of the declaration made in this visa application.

13. The visa applicant therefore meets the requirements of cl187.233(1), cl187.233(3)

14. Further the Tribunal finds that AFFINITY, who made the application for nomination, is the employer of the visa applicant. There is no evidence before the Tribunal that the nomination has been withdrawn and no evidence of adverse information before the Department or the Tribunal.

15. The visa applicant therefore meets the requirements of cl187.233(2), cl 187.233(4) and cl187.233(4A).

16. From the oral evidence given in proceeding 1806593 it is clear to the Tribunal that the position is still available to the visa applicant and given that the nomination was approved on 24 November 2020, the application for the visa is made no more than 6 months after the Minister approved the nomination and the applicant satisfies cl.187.233(6).

17. The visa applicant therefore meets the requirements of cl187.233(5) and cl187.233(6).

18. The visa applicant therefore meets the requirements of cl.187.233.

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

    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.

    Danielle Galvin
    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.