Kaur (Migration)

[2019] AATA 3021

Kaur (Migration) [2019] AATA 3021 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Vimaljit Kaur
Mr Rajinder Pal Singh
Mr Akshpreet Singh

CASE NUMBER:  1619100

HOME AFFAIRS REFERENCE(S):          BCC2015/3323140

MEMBER:Karen McNamara

DATE:7 May 2019

PLACE OF DECISION:  Sydney

DECISION: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.187.233 of Schedule 2 to the Regulations.

Statement made on 07 May 2019 at 2:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager (ANZSCO 512111) – nomination not approved – nominee working full time for the applicant – part time work with other employers – evidence provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 187.233(3), r 5.19(4)

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).

2. The applicants applied for the visas on 11 November 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, Mrs Vimaljit Kaur, the first named applicant, (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Office Manager (ANZSCO 512111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because the nomination of a position in relation to the applicant had not been approved.

6. The applicant appeared before the Tribunal by video conference on 11 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kaveh Yousefi (the nominator). Mr Rajinder Pal Singh whilst sworn in as a witness did not provide any evidence.

7. A second hearing was held on 12 March 2019. Appearing before the Tribunal was the applicant and the nominator.  The hearing was conducted via video conference.

8. The Tribunal invited the applicant to attend a second hearing on 12 March 2019, to afford her opportunity to be heard in relation to issues arising in the review. In accordance with s.359AA, at the hearing of 12 March 2019, the Tribunal put to the applicant information before it that suggested that the applicant misled the Tribunal and that there is not a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

9. At the hearing of 11 February 2019, Mrs Kaur told the Tribunal that her tax returns were up to date. Subsequently on 14 February 2019, the Tribunal received information from the nominee, showing that the applicant’s tax returns for 2016, 2017 and 2018 were prepared and lodged by her accountant on 13 February 2019, two days after the hearing.

10. The Tribunal noted that the tax returns show that she worked for other employers, that being two aged care providers, in addition to the nominee. Prior to the provision of her tax returns to the Tribunal on 15 February 2019, it was not disclosed to the Tribunal that she was working for two other employers. The evidence shows that Mrs Kaur in the 2018 financial year received an income of $42,053 from SwanCare Group and $24,612 from Amana Living (Inc) and in 2017 financial year, received an income of $41,292 from SwanCare Group and $20,996 from Amana Living (Inc). Based on the evidence provided by the nominee, the Tribunal, in accordance with s.359AA, at the hearing of 12 March 2019, put to the nominee that it may not accept that she is working full time with the applicant as the information contained in the tax returns indicate that she is working fulltime in another job (SwanCare Group).

11. Mrs Kaur told the Tribunal she was nervous and confused when she told the Tribunal that her tax returns were up to date. The Tribunal notes that the applicant has now lodged her tax returns for the last three financial years and has paid the Australian Tax Office outstanding tax due.

12. Mrs Kaur told the Tribunal she is able to work three jobs, as her role with the care facilities involve night work and provide opportunity for rest. Mrs Kaur subsequent to the hearing provided the Tribunal with Statutory Declarations from Amana Living and SwanCare which confirm the nature of her role in their respective facilities, her rostered hours and opportunity for rest during her shift.

13. The Tribunal has considered this information and is satisfied on the basis of the information provided in the Statutory Declarations that it is plausible for the nominee to work full time for the applicant and with the aged care facilities in the evenings and weekends.

14. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

17. 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.

18. 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 r.1.13A and r.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.

19. The nominating employer, Kev Renovations Pty Ltd applied to the Department of Immigration for approval of a nomination in relation to the position of Office Manager (ANZSCO 512111). That nomination was refused by the Department and consequently the applicant’s visa application was refused.

20. Kev Renovations Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No. 1615826).  On 7 May 2019, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

21. Based on the evidence before it, the Tribunal is satisfied that:

    ·The person who will employ the applicant in the nominated position (that is Kev Renovations Pty Ltd), is the person who made the nomination.

    ·Kev Renovations Pty Ltd’s nomination for the position of Office Manager has been approved by the Tribunal and has not been subsequently withdrawn.

    ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

    ·The  nominator advised at hearing the position is still available to Mrs Kaur; and

    ·The visa application was made at the same time as the employer nomination and was therefore not made more than six months after the nomination was approved.

22. On the basis of the above, the Tribunal finds that the requirements of cl.187.233 are met.

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

24. Mr Rajinder Pal Singh and Mr Akshpreet Singh, applied on the basis of being a member of the family unit of the first named applicant. The applications by Mr Rajinder Pal Singh and Mr Akshpreet Singh will be determined by reference to the outcome of Mrs Vimaljit Kaur’s application on remittal to the Department for consideration.

    DECISION

25. 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.187.233 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 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

    (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.