Manjot Kaur (Migration)

[2018] AATA 3439

Manjot Kaur (Migration) [2018] AATA 3439 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  MANJOT KAUR
Mr RAVINDER SINGH

CASE NUMBER:  1613372

DIBP REFERENCE(S):  BCC2015/2879766

MEMBER:Ian Berry

DATE:1 August 2018

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

·Clause 187.233 of Schedule 2 to the Regulations.

Statement made on 01 August 2018 at 9:18am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 on 16 August 2016 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant applied for the visa on 2 October 2015. The delegate refused to grant the visa as the first named applicant did not meet clause 187.233(3) of Schedule 2 to the Regulations, because the nomination of a position in relation to the first named applicant had not been approved.

3. The first named applicant appeared before the Tribunal on 6 November 2017 to give evidence and present arguments.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the first named applicant meets the requirements of clause 187.233. 

2. For applicants in the Direct Entry stream, clause 187.233 requires that the position to which the application relates to be the subject of an application for approval of a nominated position under regulation 5.19(4)(h)(ii) of the Regulations being a direct entry nomination in regional Australia.

3. This criterion also requires that:

   ·The person who will employ the applicant is the person who made the 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 regulation 1.13A and regulation 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.

4. The nominating employer the Trustee for the Dudas Trust (trustee) applied to the Department of Immigration and Border Protection for approval of a nomination in relation to the position of restaurant manager.  That nomination was refused by the Department and consequently the first named applicant’s visa application was refused.

5. The trustee applied to the Tribunal for review of the decision not to approve the nomination (AAT case number 1610005).  On 30 July 2018, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under regulation 5.19(4).

6. Based on the evidence before it, the Tribunal is satisfied that:

   ·The person who will employ the first named applicant in the nominated position (the trustee), is the person who made the nomination.

   ·The trustee’s nomination for the position of Restaurant Manager has been approved by the Tribunal and has not been subsequently withdrawn.

   ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

   ·The nominator advised that the position is still available to the first named applicant.

   ·The visa application was made on 2 October 2015 while the trustees nomination application was made on 30 September 2015,  therefore not made more than six months after the nomination was approved.

7. On the basis of the above, the Tribunal finds that the requirements of clause 187.233 are met.

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

9. The second named applicant applied on the basis of being a member of the family unit of the first named applicant. The second named applicant’s application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for consideration.

   DECISION

10. The Tribunal remits the applications 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:

    ·Clause 187.233 of Schedule 2 to the Regulations.

    Ian Berry
    Member