Daljeet Singh (Migration)

[2018] AATA 5753

Daljeet Singh (Migration) [2018] AATA 5753 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Daljeet Singh
Mrs Pupinder Kaur

CASE NUMBER:  1617941

DIBP REFERENCE(S):  BCC2016/900710

MEMBER:Ian Berry

DATE:7 December 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for the 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.187.223 of Schedule 2 to the Regulations.

The Tribunal finds that the second named applicant meets the criteria for a Subclass 187 visa as a member of the family unit of a person who has satisfied the primary criteria.

Statement made on 07 December 2018 at 12:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Transport Company Manager – nomination refused –  employer submitted nomination application same date as visa application – decision substituted – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.223

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 on 11 October 2016 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 March 2016. The delegate refused to grant the visa on the basis that the applicant’s employer’s nomination application been the nomination referred to in paragraph 187.223 (1) was refused.

3. The first named applicant appeared before the Tribunal on 11 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the nomination has been approved.

7. The first named applicant entered Australia on 22 September 2009 after obtaining the grant of a TU-572 student visa.  He arrived in Australia on 22 September 2009 and on 15 April 2015 was granted a VC-485 visa.

8. Clause 187.223 essentially requires that the position to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream that identifies the first named applicant.  The position must be one that was the subject of the declaration made on the part of the current visa application.

9. In addition, this criterion also requires that:

   ·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.1.1 3A and r.1.13B)

   ·The position is located in regional Australia (as defined in r.5.19).

   ·The position is still available to the first named applicant.

   ·The visa application was made no more than six months after the nomination of the position was approved.

10. The first named applicant’s employer, the trustee for the Bandesha cabs trust, made its nomination application for the position of ‘Transport Company Manager’ on 4 March 2016, the same date as the making of the visa application.

11. The Tribunal is satisfied that the position to which the first named applicant is identified, is still available to the first named applicant and, as the visa application was made at the same time as the nomination approval application, all the requirements of cl.187.223 have been met.

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

13. In relation to the second named applicant, the Tribunal finds that as the first named applicant satisfies the criteria for the grant of a Subclass 187 visa, the second named applicant meets the criteria for a Subclass 187 visa as a member of the family unit of a person who has satisfied the primary criteria.

    DECISION

14. The Tribunal remits the applications for the 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.187.223 of Schedule 2 to the regulations.

    Ian Berry
    Member