KAUR (Migration)

[2018] AATA 4843

KAUR (Migration) [2018] AATA 4843 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ranjit Kaur
Mr Jatinder Singh
Mr Mankirat Singh
Miss Amritpreet Kaur

CASE NUMBER:  1723870

HOME AFFAIRS REFERENCE(S):           BCC2017/2032197

MEMBER:Katie Malyon

DATE:28 September 2018

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 28 September 2018 at 4:25 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) visa – temporary residence transition stream – nominated position – Primary Products Inspector – Tribunal approved employer nomination – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 June 2017.  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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In the present case, the first named applicant Mrs Ranjit Kaur, is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Primary Products Inspector nec.

5. The delegate refused to grant the visas because Mrs Kaur did not meet cl.187.223(2) of Schedule 2 to the Regulations because the nomination made by her employer Malhi SS and PK (the Partnership) was not approved. Relevant provisions of the Regulations are extracted in the Attachment to this decision.

6. On 14 June 2018, the Tribunal conducted a review of the delegate’s refusal of Mrs Kaur’s Subclass 187 visa application as a combined hearing with its review of the delegate’s decision to refuse the Partnership’s nomination (AAT File 1718624).  The Tribunal received evidence from Mrs Kaur.  In addition, the Tribunal received evidence from the Managing Partner of the Partnership, Mr Sukdev Malhi (known as Bruce Malhi).  The Partnership is a blueberry farming business operated by Mr Malhi and his wife, Mrs Parampal Malhi, on the mid-north coast of NSW.

7. The applicants and the Partnership were represented in relation to the review by their registered migration agent, who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. On 28 September 2018, the Tribunal approved the nomination made by the Partnership for the position of Primary Products Inspector nec for nominee Ranjit Kaur under r.5.19(3) of the Regulations. Accordingly, cl.187.223(2) of Schedule 2 of the Regulations is met.

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

11. The second named applicant, the third named applicant and the fourth named applicant applied for their visas on the basis of being a member of the family unit of the first named applicant Mrs Ranjit Kaur.  Accordingly, their applications will be determined by reference to the outcome of Mrs Kaur’s application on remittal to the Department for reconsideration.

    DECISION

12. 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.

    Katie Malyon

    
    Member

    ATTACHMENT A - Extracts from the Migration Regulations 1994

    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.

    oOOo