Kaur (Migration)

[2022] AATA 502

Kaur (Migration) [2022] AATA 502 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rashpreet Kaur

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  1834506

HOME AFFAIRS REFERENCE(S):          BCC2018/570433

MEMBER:Warren Stooke AM

DATE:1 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.223 of Schedule 2 to the Regulations.

Statement made on 1 February 2022 at 11:05am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Interior Designer – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 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 stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Interior Designer – ANZSCO Code: 232511.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the applicant could not provide evidence of an approved standard business sponsor for the position of Interior Designer - ANZSCO Code: 232511.

6. The applicant appeared before the Tribunal on 25 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Choitelis, the director of Vartel Developments Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review and the representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Interior Designer – ANZSCO Code: 232511.

   Nomination of a position

10. Clause 187.223 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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 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.

12. The nominating sponsor provided evidence that Vartel Developments Pty Ltd was registered on 30 October 1986 and assigned the ABN 87 006 658 340, with 3 directors. The evidence to the Tribunal was provided by Mr Choitelis, who is the General Manager of Accounts and overlooks all activities.

13. The nominating sponsor stated that the business is engaged in the construction and sale of new homes mostly in the Gippsland and Sale region, which includes the production of independent display homes.

14. The nominating sponsor provided the Tribunal with an organisation chart that identified 5 persons in management positions and 11 reports to the management team, which included the applicant as an Interior Designer.

15. The nominating sponsor provided a Statement of Employment dated 27 August 2020 for employment from 23 January 2019 and a salary of $55,000 and a subsequent employment contract that became effective from 3 November 2021 after the grant of a visa.

16. The nominating sponsor provided evidence from VETASSESS of the successful review of the nominee’s qualifications as an Interior Designer dated 10 September 2020 and that the nominee had a Bachelor of Science (Interior Design) from Ji Maharaj University 2014.

17. The nominating sponsor provided evidence that the nominee had undertaken a PTE English language proficiency test on 23 June 2017 with a score of 55.

18. The nominating sponsor stated that the applicant has been working for the business for 3 years, on a full-time basis and is employed on a salary of $60,000 plus superannuation, with the Cbus fund, which is now 10 per cent.

19. The nominating sponsor stated: “Rashpreet Kaur’s terms and conditions of employment are not less favorable than what are provided to an any Australian permanent residents or citizens performing similar tasks in a similar region”.

20. The nominating sponsor stated that the applicant will be employed for at least two years beyond the grant of a visa.

21. The nominating sponsor stated that the Building and Construction modern Award applies to the nominated occupation.

22. The nominating sponsor provided evidence to the Tribunal of an approved RSMS from the Certifying Body of DEDJTR Gippsland, which was approved on 9 October 2018 for the nominated position of Interior Designer – ANZSCO Code: 232511 with a salary of $55,000.

23. The nominating sponsor provided evidence that the applicant undertakes the following duties in the performance of her role as an Interior Designer with the business:

    Duty and Responsibilities:

    ·Designs interior spaces, including permanent architectural details and

    ·temporary elements

    ·Assesses and meets client requirements and desires through regular

    ·meetings and conferences

    ·Produces sketches, drawings, and floor plans to illustrate concepts and

    ·finished projects using computer-aided design programs (CAD) and hand-drawing skills

    ·Creates idea boards to communicate design concepts to clients

    ·Selects design strategies and colour palettes to create cohesive and aesthetically pleasing environments

    ·Enhances and improves interior spaces' functionality by modifying

    ·architectural elements and arranging furnishings, artwork, and decoration.

    ·Creates project budgets, including materials and labour

    ·Negotiates pricing for materials and labour (limited)

    ·Maintains relationships with vendors and outside contractors, and hires out work as necessary

    ·Participates in regular networking opportunities and actively develops a

    client base

    ·Adheres to national and local building and safety codes with every design

    element

    ·Reads and interprets blueprints

    ·Works closely with various colleagues, including architects, artists,

    contractors, painters, upholsterers, and building inspectors

    ·Qualification required is minimum of greater than 1 year’s experience as an Interior Designer

24. The nominating sponsor explained to the Tribunal that the applicant dresses the house, including colour coding, carpets and bench-tops.

25. The nominating sponsor stated that the position of Interior Designer was advertised, as follows:

    a.Online: indeed.com – 3rd September 2021 for 30 days

    b.Jobsearch.gov.au – 26th August 2021 for 30 days

    c.Latrobe Valley Express - multiple times i.e. on 23rd August 2021, 30th August 2021, 13^th September 2021 and 20th September 2021.

    d.Word of mouth: Since 3 months

26. The nominating sponsor stated that the business had 8 applications, other than the applicant, and that none of the applicants were qualified and that the applicant had experience with Interior Designing and was energised.

27. The nominating sponsor stated that the nominee met the requirements of the occupation of Interior Designer - ANZSCO Code: 232511 that included the following:

    “Plans, designs, details and supervises the construction of commercial, industrial, retail and residential building interiors to produce an environment tailored to a purpose, with particular emphasis on space creation, space planning, and factors that enhance living and working environments.
    Skill Level: 2”

28. The applicant provided evidence that she meets with clients and discusses the needs in their house, and follows through with trade materials suppliers and architects against the pre-determined budgets.

29. The applicant meets with the owners at hand-over to obtain their consent that the build interiors are to the client’s agreed specification.

30. The applicant confirmed to the Tribunal that she works 38 per week and is paid a salary of $60,000.

31. The applicant confirmed to the Tribunal that she has health insurance with Medicare.

32. On the basis that the nominating application for the position of Interior Designer – ANZSCO Code: 232511 was approved by the Tribunal in a substitute decision in Case Matter: 1832320 on 31 January 2022, the Tribunal is satisfied that the applicant has an approved standard business sponsor for the position of Interior Designer – ANZSCO Code: 232511.

33. Accordingly, the Tribunal is satisfied that the applicant meets cl.187.223 of the Regulations for the grant of a 187 visa.

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

    DECISION

35. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.223 of Schedule 2 to the Regulation.

    Warren Stooke AM
    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.