Bhullar (Migration)

[2020] AATA 1185

Bhullar (Migration) [2020] AATA 1185 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandeep Singh Bhullar
Ms Mandeep Kaur Rattu

CASE NUMBER:  1920332

HOME AFFAIRS REFERENCE(S):          BCC2015/3384671

MEMBER:Susan Trotter

DATE:17 April 2020

PLACE OF DECISION:  Brisbane

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(3) of Schedule 2 to the Regulations.

Statement made on 17 April 2020 at 2:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Federal Circuit Court remittal – Direct Entry stream – Café and Restaurant 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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister on 12 September 2016 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 17 November 2015.

3. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. 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.

6. 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 Café and Restaurant Manager (ANZSCO 141111). An application for a Regional Employer Nomination (Class RN) visa was lodged by Mr Sandeep Singh Bhullar on 17 November 2015 on the basis that he has been nominated for the position of Café or Restaurant Manager (ANZSCO 141111) by Chinchilla (Australia) Enterprises Pty ltd. Mr Bhullar claimed to satisfy the criteria for Subclass 187 under the 'Direct Entry’ stream.

7. The delegate refused to grant the visas on 12 September 2016 because the first-named applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations as he was not the subject of an approved nomination as required as on, 26 July 2016, the related nomination lodged by Chinchilla (Australia) Enterprises Pty Ltd, was refused by a delegate of the Minister.

8. The applicant lodged a review of the delegate’s decision, initially on 20 September 2016, and again on 16 July 2019, following remittal by the Federal Circuit Court of a decision by this Tribunal, differently constituted, of the related nomination application refusal.

9. The applicant appeared before the Tribunal on 10 February 2020 to give evidence and present arguments.

10. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the first-named applicant meets the requirements of cl.187.233(3).

    Nomination of a position

13. 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 approved nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

14. Records of the Department indicate that the applicant’s employer, Chinchilla (Australia) Enterprises Pty Ltd, made an application to have the position of Café or Restaurant Manager approved, with the applicant as the nominee, with the Department on 11 November 2015. The nomination application was refused on 26 July 2016 and Chinchilla (Australia) Enterprises Pty Ltd.

15. On 17 April 2020, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Chinchilla (Australia) Enterprises Pty Ltd.

16. Therefore, cl.187.233(3) is now met in relation to the applicant.

17. As the second-named applicant applied on the basis that she is a member of the family unit of the applicant, her application will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

    Conclusion

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

    DECISION

19. 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.

    Susan Trotter
    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.