Malik (Migration)

[2017] AATA 1894

Malik (Migration) [2017] AATA 1894 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ghazala Malik
Mr Hassan Iftikhar
Mr Hareem Hassan

CASE NUMBER:  1605945

DIBP REFERENCE(S):  BCC2015/2324808

MEMBER:Alison Mercer

DATE:13 October 2017

PLACE OF DECISION:  Melbourne

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 13 October 2017 at 4:53pm

CATCHWORDS

Migration – Regional Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Nomination approved – No adverse information

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2 r 1.13A, r 1.13B, 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 Immigration 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 to the Department of Immigration for the visas on 12 August 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Child Care Worker. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required her to have an approved nomination that was still in force. The delegate found that the nomination lodged by the applicant’s employer, Ramahyuck District Aboriginal Corporation, was refused by the Department on 31 August 2015. The delegate also refused to grant the second and third named applicants (the partner and child of the applicant) subclass 187 visas because the delegate found that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 28 April 2016, which was accompanied by a copy of the delegate’s decision.

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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 section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. 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), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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.

10. 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.

11. The Tribunal finds that the applicant’s employer, Ramahyuck District Aboriginal Corporation, lodged a review application with the Tribunal on 21 September 2015 in relation to the refusal of its nomination of the applicant for the position of Child Care Worker, and that on 13 October 2017, the Tribunal set aside the Department’s refusal decision and substituted a decision to approve the nomination made by Ramahyuck District Aboriginal Corporation [see AAT decision 1512941 of 13 October 2017].

12. Accordingly, the Tribunal is satisfied on the available evidence (which includes evidence given in relation to the nomination review case lodged by Ramahyuck District Aboriginal Corporation that:

    ·Ramahyuck District Aboriginal Corporation made the original nomination application in respect of the applicant, and that employer continues to employ the applicant;

    ·the nomination has now been approved and has not been 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 if so, it is reasonable to disregard it;

    ·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. Therefore, the Tribunal finds that cl.187.233 is met.

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.  As the second and third named applicants made their application on the basis of being members of the family unit of the applicant, the outcome of their visa applications will be dependent on the outcome of the applicant’s visa application upon remittal to the Department for reconsideration according to the Tribunal’s direction.

    DECISION

15. 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.

    Alison Mercer
    Member