Kaur (Migration)

[2023] AATA 1406

Kaur (Migration) [2023] AATA 1406 (27 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Balvinder Kaur
Master Eknoor Singh
Mr Gurjinder Singh

REPRESENTATIVE:  Ms Carina Ford

CASE NUMBER:  1922451

HOME AFFAIRS REFERENCE(S):          BCC2018/818075

MEMBER:Terrence Baxter

DATE:27 April 2023

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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 27 April 2023 at 10:07am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Chef – approved nomination – position is still available to the applicant –subject of an approved nomination – member of the family unit of the applicant –decision under review remitted  

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.13, 5.19, 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 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 20 February 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 nomination stream, or the Direct Entry nomination stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry nomination stream, to work in the nominated position of Chef for Sachy Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 9 August 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required that she be the subject of an approved nomination. The delegate found that the nomination of the nominator was refused on 11 July 2019 and that accordingly the applicant did not meet the requirements of cl 187.233(3) and did not meet the requirements of cl 187.233 as a whole.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl 187.311) requiring each of 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 lodged an application for review of the delegate’s decision with the Tribunal on 13 August 2019.

8. In accordance with s 360(2) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear before the Tribunal to give evidence in relation to the decision under review. The Tribunal has therefore made a decision on the material before it.

9. The applicants were represented in relation to the review by their registered migration agent, Mr Amber Gupta, until 28 May 2020 and by their legal representative, Ms Carina Ford, from that date.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. 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 nomination 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.

13. 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.

14. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Chef approved, with the applicant as nominee, on 20 February 2018. The nomination application was refused on 11 July 2019 and the nominator sought review of that decision with the Tribunal on 29 July 2019.

15. On 24 April 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

16. Therefore, cl 187.233(3) is met in respect of the applicant.

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

18. The second named and third named applicants have applied on the basis that each of them is a member of the family unit of the applicant. Their application will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation to the applicant.

    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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

    Terrence Baxter
    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.