Kaur (Migration)

[2019] AATA 2052

Kaur (Migration) [2019] AATA 2052 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manjinder Kaur
Mr Prabhpreet Singh
Mr Sahibpartap Singh

CASE NUMBER:  1701865

HOME AFFAIRS REFERENCE(S):           BCC2016/1837168

MEMBER:Wan Shum

DATE:12 February 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(1) of Schedule 2 to the Regulations.

Statement made on 12 February 2019 at 3:06pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Banana Inspector – nomination refused – 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 and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 187 (Regional Sponsored Migration Scheme) visas on 25 May 2016.

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 the Temporary Residence Transition stream, to work in the nominated position of ‘Banana Inspector’. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation. The employer in this case is D Singh & D.P Singh & H Singh & J Singh. The employer applied for approval for the position of ‘Banana Inspector’ on 25 May 2016 and identified the applicant as the Subclass 457 visa holder. That application was not approved.

5. The delegate refused to grant the visas because the applicant did not meet 187.223 of Schedule 2 to the Regulations because the nomination had not been approved.

6. The employer sought review of the decision not to approve the nomination and was represented in relation to the review by a registered migration agent. The applicants also sought review in relation to the visa refusal decisions and were represented by the same agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination in respect of the first named applicant (the applicant).

9. 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 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. On the information before the Tribunal, it finds these requirements have been met.

11. 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.

12. On 6 February 2019, the Tribunal approved the related nomination. It has not been withdrawn. The Tribunal is not aware of any ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person. The position is located in Bombeeta, Queensland. The postcode is 4871 which is regional Australia as defined in r.5.19.

13. The position is still available to the applicant and, as the visa application was made prior to the approval of the nomination, all of the requirements of cl.187.223 have been met.

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

    DECISION

15. 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.187.223 of Schedule 2 to the Regulations.

    Wan Shum
    Member