Brar (Migration)

[2018] AATA 2619

Brar (Migration) [2018] AATA 2619 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Balraj Singh Brar
Mrs Amandeep Kaur Sandhu
Master Jasnoor Singh Brar

CASE NUMBER:  1618923

DIBP REFERENCE(S):  BCC2015/3933710

MEMBER:Alan McMurran

DATE:1 June 2018

PLACE OF DECISION:  Sydney

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 (3) of Schedule 2 to the Regulations; and

The Tribunal has no jurisdiction in respect of the third named applicant, Master Jasnoor Singh Brar.

Statement made on 01 June 2018 at 4:18pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 – Regional Sponsored Migration Scheme – Approval of nomination – Subject of an approved nomination – Third applicant not in migration zone – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
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 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 18 December 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Nurseryperson. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas by decision made 8 November 2016 because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, and because on 30 September 2016, the nomination in support of the visa application was refused by the Department.

6. The third named applicant, Master Jasnoor Singh Brar, was not in the migration zone at the time of the visa application. The Department travel record shows that Master Jasnoor Singh Brar departed Australia on 11 August 2012. S.347 (3A) requires that an application for review may only be made by a non-citizen who is physically present in the migration zone at the time when the application for review is made.

7. As the third-named applicant was not present in the migration zone when the review application was made, the Tribunal has no jurisdiction to deal with the application by Master Jasnoor Singh Brar.

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

9. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under subsection 338(2) and that the applicants have made a valid application for review under section 347 of the Act.

10. The Tribunal has before it the Departmental file relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and the information available to it in related Tribunal file 1617048.

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 applicant meets the requirements of clause 187.233 (3). Specifically, for applicants in the Direct Entry stream, clause 187.233 (3) requires that the Minister has approved the nomination.

    Nomination of a position

13. For applicants in the Direct Entry stream, the criterion in cl.187.233 (3) requires that the position to which the application relates is a nomination which the Minister has approved.

14. 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 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.

15. Having regard to the information contained in the Department’s file BCC 2015/3933710 and in the related Tribunal file 1617048, the Tribunal finds that the person who will employ the applicant is Murphy Vineyards Pty Ltd, being the person who made the nomination.

16. On 3 May 2018, the Tribunal on review approved the nomination by Murphy Vineyards Pty Ltd nominating the review applicant, Balraj Singh Brar, for the occupation of nursery person.

17. The Tribunal is not aware of any adverse information known to immigration about the nominator, Murphy Vineyards Pty Ltd, or a person associated with the nominator.

18. The Tribunal is not aware of any information to the effect that the position nominated of nursery person is no longer available to the applicant. The current review of the visa application has not been withdrawn.

19. The Tribunal finds that the review applicant is the subject of an approved nomination as set out above and in accordance with cl.187.233 (3) of the regulations.

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

    Secondary Applicants

21. The Tribunal finds that the secondary applicants, Amandeep Kaur Sandhu and Jasnoor Singh Brar are members of the family unit of the primary visa applicant.

22. For the reasons set out above, the Tribunal finds it has no jurisdiction in respect of the third named applicant, Jasnoor Singh Brar, who departed Australia on 11 August 2012 and was not present in the migration zone at the time the review application was made.

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

    DECISION

24. 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; and

    The Tribunal has no jurisdiction in respect of the third-named applicant, Master Jasnoor Singh Brar.

    Alan McMurran
    Member