BRAR (Migration)

[2023] AATA 162

BRAR (Migration) [2023] AATA 162 (23 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Parampreet Kaur BRAR
Mr Harmanjotpal Singh BRAR
Master Tegvir Singh Brar

REPRESENTATIVE:  Mr Ireneusz Lasocki (MARN: 0102034)

CASE NUMBER:  1928202

HOME AFFAIRS REFERENCE(S):          BCC2018/845718

MEMBER:George Hallwood

DATE:23 January 2023

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations.

Statement made on 23 January 2023 at 3:26pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
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 (Cth) (the Act).

2. The applicants applied for the visas on 21 February 2018. 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 (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 Direct Entry stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the related nomination application by Diwali Pty Ltd case number 1923548 was refused.

6. The applicants appeared before the Tribunal on 23 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Venkata Rama Sandeep Varma Dandu on behalf of the nominator.

7. The applicants were represented in relation to the review.

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 first named applicant meets the requirements of cl 187.233 of the Regulations.

   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 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 the 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 reg 1.13A and reg 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. On 23 January 2023 the Tribunal approved the related nomination of the position to which the application relates and the subject of an application for approval of a nomination in the Direct Entry stream, and which is located in regional Australia. The Tribunal is satisfied based on the application that the position is the one that was the subject of the declaration made as part of the current visa application. In addition, the application identifies the primary applicant in relation to the position of Restaurant Manager.

13. Diwali Pty Ltd made the nomination and Mr Dandu told the Tribunal Diwali Pty Ltd will also employ the applicant.

14. Mr Dandu told the Tribunal that the nomination has not been withdrawn.

15. As discussed in the reasons of the related nomination decision – case number 1923548, the Tribunal is not aware of any ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person.

16. Mr Dandu told the Tribunal that the position was still available to the applicant.

17. As the visa application was made before the nomination of the position was approved, the Tribunal is satisfied this requirement is met.

18. Therefore, cl 187.233 is met.

    CONCLUDING PARAGRAPHS

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

20. The secondary applicants were refused on the basis that, as a member of the family unit of the primary applicant, that the primary applicant had not met the requirements of subregulation 187.233. As the primary applicant has now met this requirement the Tribunal recommends that the department reconsider the applications of the secondary applicants.

    DECISION

21. 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 of Schedule 2 to the Regulations.

    George Hallwood
    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.