Manpreet Kaur (Migration)

[2020] AATA 5259

Manpreet Kaur (Migration) [2020] AATA 5259 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manpreet Kaur
Mr GURPREET SINGH
Mr EKNOOR SINGH

CASE NUMBER:  1806245

HOME AFFAIRS REFERENCE(S):          BCC2016/3058364

MEMBER:Susan Trotter

DATE:9 December 2020

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:

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

Statement made on 09 December 2020 at 4:16pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – related position nomination refused – refusal set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 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 14 September 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 Retail Manager (General) for Harcrys Pty Ltd (the nominator).

5. 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 be the subject of an approved nomination. The delegate found that the relevant nomination application had been refused on 18 January 2018 and that accordingly the applicant did not satisfy cl.187.233 as required.

6. The delegate also found that the other applicants (the first-named applicant’s husband and son) could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl.187.311) requiring them each to be a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary visa criteria, and they did not claim to meet, nor was there evidence that they met, the primary visa criteria in their own right.

7. The applicants lodged an application with the Tribunal on 8 March 2018.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear before the Tribunal.

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

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

    DECISION

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

    Nomination of a position

12. Clause 187.233(3) is one of the essential criteria that must be met. It requires that the position to which the application relates is the subject of an application for approval of a nomination, which nomination has been approved.

13. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to have the position of Retail Manager (General) approved, with the applicant as the nominee, with the Department on 14 September 2016. The nomination application was refused on 18 January 2018 and the nominator sought review of that decision with the Tribunal on 2 February 2018.

14. On 4 December 2020, the Tribunal set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

15. Therefore, cl.187.233(3) is now met in relation to the applicant.

16. As the secondary applicants applied on the basis that they are each a member of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

    Conclusion

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

18. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction - Conducting Migration and Refugee Reviews (1 August 2018), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    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.

    Susan Trotter
    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.