KAUR (Migration)

[2021] AATA 4956

KAUR (Migration) [2021] AATA 4956 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss AMANDEEP KAUR
Master SHAKSHAMPREET SINGH
Mr SATNAM SINGH

CASE NUMBER:  1828455

HOME AFFAIRS REFERENCE(S):          BCC2016/3624818

MEMBER:Deputy President J.L Redfern PSM

DATE:7 December 2021

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. 233 of Schedule 2 to the Regulations.

Statement made on 7 December 2021 at 5:47 PM

CATCHWORDS:

MIGRATION – Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – Direct Entry stream – Café or Restaurant Manager – whether subject of an approved nomination – decision under review remit with direction

LEGISLATION:

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), reg 1.2A, Sch 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 31 October 2016. The third named applicant is the spouse of the first named applicant, Ms Amandeep Kaur, who is the primary applicant for the visa. The second named applicant is their son. The second and third named applicants are members of the family unit. 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 to 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, Ms Kaur is seeking the visa in the Direct Entry stream to work in the nominated position of Restaurant Manager for Saini Pty Ltd (Saini). Saini operates an Indian Restaurant in the Port Macquarie region. It has been operating for about 20 years.

5. On 8 August 2018 a delegate of the Minister refused to approve the nomination of Saini for Ms Kaur’s position because the delegate was not satisfied there was a genuine need for the position or that this position could not otherwise be filled by an Australian citizen or permanent resident in the location. As approval of the nomination is an essential requirement for the grant of a subclass 187 visa, the delegate also refused Ms Kaur’s application. In short, the delegate found that Ms Kaur did not meet the relevant criteria in cl 187.233 of Schedule 2 to the Regulations because Saini’s nomination for the position was not approved.

6. Saini sought a review of the decision of the delegate (matter no 1824902). I have reviewed that decision and have come to a different view to the delegate. In summary, I found that Saini met all of the requirements for approval of the nomination in respect of Ms Kaur. I have therefore set aside the decision refusing the nomination and substituted a decision approving the nomination.

7. Ms Kaur appeared before me on 14 September 2021 to give evidence and present arguments. The hearing was conducted by video, using Microsoft Teams. I also received oral evidence from Mr Lakhvir Singh Saini, the managing director of Saini. The applicants were represented in relation to the review by their registered migration agent.

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 Ms Kaur satisfies the requirements of cl 187.233. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision.

10. 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 (cl 187.233(1)). There is no dispute that this requirement is met.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination (cl 187.233(2));

    ·the nomination has been approved and has not been subsequently withdrawn (cls 187.233(3) and (4));

    ·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 (cl 187.233(4A));

    ·the position is still available to the applicant (cl 187.233(5)), and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl 187.233(6)).

12. The delegate refused the application for the grant of the visa on the grounds that the nomination by Saini for Ms Kaur’s position was not approved. The delegate did not assess the other requirements in cl 187.233. The delegate also refused the secondary applications, although accepted that their applications were valid. It is not in dispute that the second and third named applicants are members of Ms Kaur’s family unit.

13. Part 187.3 of Schedule 2 to the Regulations sets out the secondary criteria for applicants who are members of the family unit of a person who satisfies the primary criteria. Relevantly, cl 187.311 provides that the applicant must be a member of the family unit of the primary applicant who satisfies the primary criteria for the grant of the visa. Member of a family unit includes the spouse or de facto partner of the family head or a child or stepchild of the spouse or de facto of the family head who is under 18 years.[1]

    [1] reg 1.12 of the Migration Regulations 1994 (Cth).

14. The determinative issue in the present case, also being the basis for the refusal of the visa, is whether the criteria set out in cl 187.233(3) is satisfied. In the related application by Saini, I have approved the nomination for the position relating to Ms Kaur. There is no evidence that the nomination has been subsequently withdrawn. Saini has pursued the review of the decision not to approve the nomination and this continued to be the case up until the time of my decision in the related Saini proceedings.[2] Accordingly, I find that the criteria in cls 187.233(3) and (4) are satisfied.

    [2] 1824902.

15. I have therefore assessed the balance of the criteria for cl 187.233.

16. I am satisfied that cl 187.233(2) is met because Saini made the application for the nomination and, according to the evidence of Mr Saini and consistent with the evidence of Ms Kaur, the company currently employs, and will continue to employ, Ms Kaur pursuant to employment contracts dated 2016 and 2021.

17. There is no evidence of current adverse information known to the Department, either about Saini or Ms Kaur. In this regard, I refer to my findings in relation to the related Saini proceedings and note that enquiries undertaken by me in respect of the of the Department of Home Affairs database known as the Integrated Client Services Environment (ICSE) records do not show that there is any adverse information recorded about Ms Kaur.[3] The criterion in cl 187.233(4A) is therefore met.

    [3] Ibid.

18. Having regard to the evidence of Mr Saini provided at the hearing, I am satisfied that the role currently being undertaken by Ms Kaur, which has been undertaken by her over the past five years is still available to her. As such, the criteria in cl 187.233(5) is met.

19. Finally, the application for the visa is still current and was not made more than six months after the nomination for the position has been approved, in satisfaction of the criteria in cl 187.233(6).

20. In conclusion, I find that the requirements of cl 187.233 are met.

21. In the evidence provided in support of the application, the applicants provided to the Department a marriage certificate and a birth certificate for Shakshampreet Singh. Based on this evidence, I am satisfied that Shakshampreet and Satnam Singh are both members of the family unit of Amandeep Kaur, but I note that they cannot satisfy the criteria in cl 187.311 unless and until the Minister is satisfied that Ms Kaur satisfies all of the criteria for the visa.

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

    DECISION

23. 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 187.233 of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President

    
    

    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.