Chawla (Migration)

[2023] AATA 2749

Chawla (Migration) [2023] AATA 2749 (11 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harpreet Kaur Chawla
Mr Harvinder Singh Chawla
Miss Tejnoor Kaur Chawla
Miss Gurmehak Kaur Chawla

REPRESENTATIVE:  Mr Vikram Bir (MARN: 0851838)

CASE NUMBER:  2003256

HOME AFFAIRS REFERENCE(S):          BCC2019/5643627

MEMBER:Karen McNamara

DATE:11 August 2023

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 187.233(3) of Schedule 2 to the Regulations.

Statement made on 11 August 2023 at 5:29pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; rr 1.13, 5.19

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 8 November 2019. 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 Mrs Harpreet Kaur Chawla (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position/occupation of Cook (ANZSCO 351411).

5. On 3 February 2020, the delegate refused to grant the visas because Mrs Harpreet Kaur Chawla did not meet cl.187.233(3) of Schedule 2 to the Regulations, because on 16 December 2019, the nomination application lodged by Spices 29 Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs.

6. The delegate also found that the second named applicant (Mr Harvinder Singh Chawla), third named applicant (Miss Tejnoor Kaur Chawla) and fourth named applicant (Miss Gurmehak Kaur Chawla) could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants applied to the Tribunal on 20 February 2020, for review of the delegate’s decision.

8. On 10 August 2023, Mrs Harpreet Kaur Chawla appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from     Mr Nelson Fernandes (the nominator) in the related matter for the nomination review application (AAT Case file 1935487). The related matters were heard concurrently in a combined hearing.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. The applicants were represented in relation to the review. The representative attended the hearing.

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 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 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.

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 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.

15. The nominating employer, Spices 29 Pty Ltd applied to the Department for approval of a nomination in relation to the position/occupation of Cook (ANZSCO 351411). That nomination was refused by the Department and consequently the applicants visa applications were refused.

16. Spices 29 Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1935487). On 11 August 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

17. The second named applicant, (Mr Harvinder Singh Chawla), third named applicant (Miss Tejnoor Kaur Chawla) and fourth named applicant (Miss Gurmehak Kaur Chawla) applied on the basis of being a member of the family unit of the first named applicant (Mrs Harpreet Kaur Chawla). The applications by Mr Harvinder Singh Chawla, Miss Tejnoor Kaur Chawla and Miss Gurmehak Kaur Chawla, will be determined by reference to the outcome of        Mrs Harpreet Kaur Chawla’s application on remittal to the Department for consideration.

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

    DECISION

19. 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.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.