KUMAR (Migration)

[2019] AATA 5273

KUMAR (Migration) [2019] AATA 5273 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr VINOD KUMAR
Mrs KALPANA BAI

CASE NUMBER:  1716659

HOME AFFAIRS REFERENCE(S):          BCC2016/4393084

MEMBER:Alan McMurran

DATE:21 November 2019

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; and

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

·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 21 November 2019 at 10:35am

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 31 July 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 for the visas on 29 December 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 (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 regional Australia in the nominated position of ICT Trainer (ANZSCO 223211).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the applicant the Minister has not approved the applicant’s nomination, by the nominator, IBT Wizard Pty Ltd.[1]

   [1] DIBP file BCC 2016/4382032

6. The applicant appeared before the Tribunal by video link from Canberra on 20 November 2019 in a combined hearing with a review of the refused nomination. The second-named applicant was off-shore at the time and did not appear. The applicant appeared and gave evidence and presented arguments, alongside a witness for the nominator, Ms MacLeod, who also gave evidence. The Tribunal received oral evidence from both persons in attendance.[2]

   [2] See also T case file and related documents in 1713115

   Background

7. The applicant is a 34-year-old citizen of the Islamic Republic of Pakistan. The second named applicant is the spouse of the applicant. The applicants are married and which marriage was formalised in 2017. The second named applicant is currently offshore awaiting the outcome of the review of the visa application refusal by the Tribunal

8. This application was conducted as a combined hearing with the review of the nomination refusal,[3] and the information provided both in support of the nomination and by the applicant as the nominee was relied upon in this review. That information contains details as to the education and employment history of the applicant as an ICT Trainer by the nominator. The applicant’s employment history with the nominator dates from December 2016 until the present time. The second named applicant is currently not employed and living in Pakistan with family.

   [3] Ibid ff 1-252

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the subject of a nomination which the minister has approved.

    Nomination of a position

11. Clause 187.233 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.

12. 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.

13. The Tribunal has had regard to the Department file[4] and the Tribunal case file and the information provided recently to the Tribunal in support of the application by the representative[5] and the information and oral submissions made at the combined hearing.

    [4] BCC 2016/4393084

    [5] T File 1716659 ff 8-113

14. The Tribunal notes that on 21 November 2019 the Tribunal made a decision following the hearing to set aside the nomination decision under review and substitute a decision approving the nomination.

15. In reaching its decision, the Tribunal found it was satisfied that the nominator is the person who will employ the applicant and made the nomination and that the nomination had not been withdrawn. Tribunal further found there was no adverse information known to immigration about either the nominator or the nominee or a person associated with either of those applicants. The Tribunal found that the position of ICT Trainer was still available to the applicant and that the nominator was still pursuing the employment with the applicant. The Tribunal noted that the applicant in fact remains employed on a full-time basis in the occupation with the nominator in regional Australia in Canberra, ACT.

16. The Tribunal notes that this visa application was made no more than 6 months following the nomination of the position, now approved on 21 November 2019.

17. The Tribunal finds on the available information and documentation that it is satisfied the applicant meets the criteria in cl.187.233.

18. Therefore, cl.187.233 is met.

    Secondary applicant

19. The secondary criteria under cl. 187. 311 apply to applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

20. The secondary applicant is a member of the family unit of the applicant (primary applicant) and has made a combined application with the primary applicant.

21. The Tribunal finds that the secondary applicant is a member of the family unit of the primary applicant who has met the requirements of subclause 187.233, satisfying the primary criteria for the grant of the visa.

22. Therefore, cl. 187.311 is met.

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

    DECISION

24. 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; and

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

    ·cl.187.311. of Schedule 2 to the Regulations.

    Alan McMurran
    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.