Jaura (Migration)

[2019] AATA 2242

Jaura (Migration) [2019] AATA 2242 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhchain Singh Jaura
Mrs Shinderpal Kaur Brar
Miss Pavreet Jaura

CASE NUMBER:  1709849

HOME AFFAIRS REFERENCE(S):           BCC2015/3966033

MEMBER:Mr S Norman

DATE:31 May 2019

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.187.223(2) of Schedule 2 to the Regulations

Statement made on 31 May 2019 at 11:20am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Temporary Residence Transition stream – nomination approval application refused – not nominated by employer in accordance with Labour agreement – nomination approved by tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 187.223(2), 187.242, 187.311, rr 1.13A, 1.13B, 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 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). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 20 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 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 Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO: 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223(2) (and cl.187.223) of Schedule 2 to the Regulations because the related nomination approval application had been refused.

6. The applicant (Mr Sukchain Singh JAURA) appeared before the Tribunal on 28 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Anand GOPINATH (the Director of the nominating business).

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

10. 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.1.13A and r.1.13B); or it is reasonable to disregard any such information

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

    ·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.

11. An application for a Regional Employer Nomination Subclass 187 visa was lodged by the applicant on 20 December 2015 (the related nomination approval application was lodged by Annilax Enterprises P/L on 19 December 2015). The nominated occupation was for a Cook (ANZSCO: 351411). The applicant was Mr Sukhchain Singh JAURA (DOB: 09/09/1984), who was claimed to satisfy the criteria for the subclass 187 visa under the Temporary Residence Transition stream.

12. The delegate then noted that on 9 March 2017, the nomination application lodged by Annilax Enterprises P/L, being the related nomination application referred to in cl.187.223, was refused by a delegate of the Minister for Immigration and Border Protection. As the nomination application had been refused the applicant had not met cl.187.223(2).  

13. The delegate also considered the application under the Direct Entry Stream however, pursuant to cl.187.233(1)(a) of Schedule 2 of the Migration Regulations, the position to which a visa application relates must have been nominated and approved under r.5.19(4)(h)(ii) or 5.19(2) as in force before 1 July 2012. Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant did not meet cl.187.233. Next, the delegate considered the applicant’s claims under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a Labour agreement, the applicant did not meet cl.187.242. Next, the delegate considered cl.187.311 (member of the family unity); however, as none of the applicants met the primary criteria for the grant of the visa, none of the applicants satisfied cl.187.311.

14. The Tribunal notes the nomination approval application related to this case had been approved on 31 May 2019 (see AAT# 1706162). Therefore, the Tribunal is satisfied the visa applicant has met cl.187.223(2).

15. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

16. 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.187.223(2) of Schedule 2 to the Regulations

    Mr S Norman
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position to which the application relates is located in regional Australia.

    (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.