Kaur (Migration)

[2021] AATA 3935

Kaur (Migration) [2021] AATA 3935 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Simranjit Kaur
Mr Parmjeet Singh Brar
Master Hardev Singh Brar

CASE NUMBER:  1827000

HOME AFFAIRS REFERENCE(S):          BCC2016/1576535

MEMBER:Terrence Baxter

DATE:12 October 2021

PLACE OF DECISION:  Brisbane

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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

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

Statement made on 12 October 2021 at 11:47am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 187.311

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 28 April 2016. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook for Suvercha Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 31 August 2018 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, which required that she be the subject of an approved nomination. The delegate found that the nomination of the nominator was refused on 27 July 2018 and accordingly that the applicant did not satisfy cl 187.233(3) and did not meet the requirements of cl 187.233 as a whole.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl 187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 14 September 2018.

8. The Tribunal did not hold a hearing in this matter because it determined that it was able to make a favourable decision on the papers.

9. The applicants were represented in relation to the review by their registered migration agent MrJujhar Bajwa of Bajwa Immigration Consultants of Nunawading, Victoria.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

13. 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 of the Regulations); 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.

14. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Cook approved, with the applicant as nominee, on 28 April 2016. The nomination application was refused on 27 July 2018 and the nominator sought review of that decision with the Tribunal on 17 August 2018.

15. On 12 October 2021, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

16. Therefore, cl 187.233 is met in relation to the applicant.

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

18. The second named and third named applicants applied on the basis that they are members of the family unit of the applicant. Their applications will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation to the first named applicant.

    DECISION

19. 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(3) of Schedule 2 to the Regulations.

    Terrence Baxter
    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

    (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.