KAUR (Migration)

[2021] AATA 5359

KAUR (Migration) [2021] AATA 5359 (26 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Varinder Pal KAUR
Mr Tarlok KUMAR
Master Heyman GURU
Master Reyman GURU

CASE NUMBER:  1901711

HOME AFFAIRS REFERENCE(S):          BCC2018/426855

MEMBER:Joanne Bakas

DATE:26 November 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

·cl.187.233(3) of Schedule 2 to the Regulations

Statement made on 26 November 2021 at 6:08pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – 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 applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 25 January 2018. The delegate refused to grant the visas on 14 January 2019.

2. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate made the decision on the basis that the first named applicant (the applicant) did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position had not been approved (187.233(3)).

4. On 26 November 2021 the Tribunal decided to set aside the Department’s decision and substitute a decision approving the nomination.

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

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether there is an approved nomination of the position.

   Nomination of a position

8. 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). 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.

9. In addition, this criterion also requires that the nomination has been approved.

10. The applicant was nominated by Diwali Pty Ltd for a position in the occupation of Cook (ANZSCO – 351411). The Department refused the associated nomination and Diwali Pty Ltd applied for review of that decision.

11. On 26 November 2021, the Tribunal decided to set aside the Department’s decision and substituted a decision approving the nomination.

12. As the relevant nomination has now been approved, it follows that the requirement in cl.187.233(3) is now met.

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

14. As the Tribunal has found that the applicant satisfies cl. 187.233(3), it is appropriate that the secondary applicants’ applications are also reconsidered by the Department by reference to the outcome of the primary applicant’s application.

    DECISION

15. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

    ·cl.187.233(3) of Schedule 2 to the Regulations

    Joanne Bakas
    Member