Kaur (Migration)

[2017] AATA 2483

Kaur (Migration) [2017] AATA 2483 (23 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mandeep Kaur
Mr Guriqbal Singh Lehal
Master Arav Singh Lehal

CASE NUMBER:  1609778

DIBP REFERENCE(S):  BCC2015/2964353

MEMBER:Alison Mercer

DATE:23 November 2017

PLACE OF DECISION:  Melbourne

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.187.233 of Schedule 2 to the Regulations.

Statement made on 23 November 2017 at 1:31pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) visa – Nominated position – Gardener – Employer lodged a review application – Nominated position approved

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19(4) , 5.19(4)(a)(ii), 5.19(4)(h)(ii) 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 Immigration 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 to the Department of Immigration for the visas on 11 October 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Gardener (General). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the Department had refused to approve the applicant’s nominating employer’s nomination of her. The delegate refused the visa applications of the second and third named applicants (the applicant’s husband and son) on the basis that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence to indicate that either of them met the primary visa criteria in his own right.

6. The Tribunal received a review application from the applicants on 30 June 2015, which was accompanied by a copy of the delegate’s decision.  The applicants appointed a registered migration agent, Ms Carina Ford, to be their representative and authorised recipient for correspondence.

7. The applicants attended a hearing on 7 July 2017. The applicant also gave evidence as a witness at the hearing for her employer, Khalsa Orchards Pty Ltd ATF J & J Singh Income Trust (trading as Superfresh Australia) on the same date, in relation to the review application lodged by that employer against the Department’s decision to refuse their nomination of the applicant.

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. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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.

11. The Tribunal finds that the applicant’s employer, Khalsa Orchards Pty Ltd ATF J & J Singh Income Trust (trading as Superfresh Australia), lodged a review application with the Tribunal on 23 May 2016 in relation to the refusal of its nomination of the applicant for the position of Gardener (General), and that on 23 November 2017, the Tribunal set aside the Department’s refusal decision and substituted a decision to approve the nomination made by Khalsa Orchards Pty Ltd ATF J & J Singh Income Trust (trading as Superfresh Australia) [see AAT decision 1607297 of 23 November 2017].

12. Accordingly, the Tribunal is satisfied on the available evidence (which includes evidence given in relation to the nomination review case lodged by Khalsa Orchards Pty Ltd ATF J & J Singh Income Trust (trading as Superfresh Australia) that:

    ·Khalsa Orchards Pty Ltd ATF J & J Singh Income Trust (trading as Superfresh Australia) made the original nomination application in respect of the applicant, and that employer continues to employ the applicant;

    ·the nomination has now been approved and has not been 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 if so, it is reasonable to disregard it;

    ·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.

13. Therefore, the Tribunal finds that cl.187.233 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second and third named applicants made their application on the basis of being members of the family unit of the applicant, the outcome of their visa applications will be dependent on the outcome of the applicant’s visa application upon remittal to the Department for reconsideration according to the Tribunal’s direction.

    DECISION

14. 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.187.233 of Schedule 2 to the Regulations.

    Alison Mercer
    Member