Miglani (Migration)

[2023] AATA 1418

Miglani (Migration) [2023] AATA 1418 (3 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Inderjeet Miglani
Mrs Sonia Nagpal
Miss Eva Miglani

REPRESENTATIVE:  Mr Brian Kiseok Park (MARN: 0960412)

CASE NUMBER:  1928499

HOME AFFAIRS REFERENCE(S):          BCC2018/837649

MEMBER:Karen McNamara

DATE:3 May 2023

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(3) of Schedule 2 to the Regulations.

Statement made on 03 May 2023 at 1:18pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream –Motel Manager – approved nomination – position is still available to the applicant –subject of an approved nomination – member of the family unit of the applicant –decision under review remitted  

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, 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 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 21 February 2018. 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 Mr Inderjeet Miglani (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Motel Manager under the occupation Hotel or Motel Manager (ANZSCO 141311).

5. On 26 September 2019, the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, because on 26 August 2019, the nomination application lodged by MSR Freights Services Pty Ltd, was refused by a delegate of the Minister for Home Affairs.

6. The delegate also found that the second named applicant, Mrs Sonia Nagpal and third named applicant Miss Eva Miglani, could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring 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 applied to the Tribunal on 9 October 2019 for review of the delegate’s decision.

8. On 27 April 2023, Mr Inderjeet Miglani appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Daniel (Maheep) Singh (the nominator) in the related matter for the nomination review application (AAT Case file 1925542).

9. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

13. 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.

14. In addition, 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 reg 1.13A and reg 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.

15. The nominating employer, MSR Freights Services Pty Ltd applied to the Department for approval of a nomination in relation to the position of Motel Manager under the occupation Hotel or Motel Manager (ANZSCO 141311). That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

16. MSR Freights Services Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1925542). On 3 May 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

17. The second named applicant (Mrs Sonia Nagpal) and third named applicant (Miss Eva Miglani) applied on the basis of being a member of the family unit of the first named applicant (Mr Inderjeet Miglani). The applications by Mrs Sonia Nagpal and Miss Eva Miglani will be determined by reference to the outcome of Mr Inderjeet Miglani’s application on remittal to the Department for consideration.

18. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

DECISION

1. 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.

   Karen McNamara
   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

   (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.