Gurendra Singh (Migration)

[2021] AATA 3000

Gurendra Singh (Migration) [2021] AATA 3000 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Gurendra Singh
Mrs Navneet Kaur
Master Viraj Singh Hundal

CASE NUMBER:  1830250

HOME AFFAIRS REFERENCE(S):  BCC2018/13385

MEMBER:Ian Berry

DATE:27 July 2021

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 of Schedule 2 to the Regulations.

Statement made on 27 July 2021 at 12:19pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; 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 2 January 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 this case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Support Technician ANZSCO 313199.

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 applicant could not satisfy the delegate of his having an approved nomination.

6. The nomination application made 2 January 2018 by the applicant’s employer Telebiz Telco Pty Ltd (employer) identified the applicant to fill the position of ICT Support Technician.  The application was refused by the Department.  On 27 July 2021, the Tribunal approved the nomination because the employer provided enough information to show that it could employ the nominee for at least 2 years full-time.

7. On the hearing of the nomination application on 23 July 2021, the applicant gave evidence as to the nature of the applicant’s business as well as giving an account of the tasks he performs in the position of ICT Support Technician.

8. The applicants were represented in relation to the review by their registered migration agent Mr N Sahi MARN 0641530.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant has an approved nomination for a position which has not been withdrawn.

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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.

13. On 27 July 2021, the Tribunal approved the nomination in which the applicant was identified.  Based on the evidence provided in the nomination application, the Tribunal is satisfied that the approved position is the same as the one that was the subject of the relevant r.5.19(4) nomination application.  The tribunal is also satisfied the position is the same as that in the visa application declaration.  The Tribunal finds that clause 187.233(1) is met.

14. The evidence in the employer’s nomination application, the Tribunal was satisfied that:

    a.Telebiz Telco Pty Ltd will employ the applicant, is the ‘person’ who was the nominator in that application for approval.

    b.The employer continues to employ the applicant who commenced his employment in January 2018. 

    c.The employer has not withdrawn the position: cl.187.233(3)

    d.Considering the Tribunal’s approval of the appointment under r.5.19(4), the Tribunal finds that the applicant now meets the requirements of cl.187.233

15. Therefore, cl 187.233 is met.

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

    Secondary applicants

17. In relation to the secondary applicants, the appropriate course of action is to also remit their applications to the Department for reconsideration considering the finding that the first named applicant now satisfies cl.186.233(2).

    DECISION

18. 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 of Schedule 2 to the Regulations; and

    Ian Berry
    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.