Munde (Migration)

[2018] AATA 5370

Munde (Migration) [2018] AATA 5370 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur Munde
Mr Bikram Singh Kular

CASE NUMBER:  1705947

HOME AFFAIRS REFERENCE(S):           BCC2016/1129999

MEMBER:Mr S Norman

DATE:7 November 2018

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; and

Statement made on 07 November 2018 at 4:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination application now approved by Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 15 March 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 the nominated position of Retail Manager (Gen) (ANZSCO: 142111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application had been refused.

6. The first named applicant (Mrs Gurpreet Kaur MUNDE) appeared before the Tribunal on 6 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating businesses’ Director – Ms Suman RATHORE. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. 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. 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 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.

10. The applicant lodged an application for a Regional Employer Nomination (class RN) Regional Employer Nomination (subclass 187) visa on 15 March 2016. This was for the Direct Entry Stream. On 15 March 2016, the nominator’s (U Singh P/L) nomination approval was lodged with the Department. However on 6 February 2017, that nomination application had been refused by the Department. An email has then been sent to the visa applicant (the applicant) on 6 February 2017 seeking their comment about this within the prescribed time. The delegate then noted the applicant had not withdrawn their visa application and that no further information had been received.  Therefore, since the nomination approval for a Retail Manager (General) was not approved by the Department, the applicant did not meet cl.187.233(3). The applicant was therefore not found to meet the requirement for cl.187.233 under the Direct Entry stream.

11. Next, the delegate assessed the application under the Temporary Residence Transition stream and the Agreement stream. Under cl.187.223 and cl.187.242, the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination approval had been refused the delegate was not satisfied the applicant met  cl.187.223 or cl.187.242. The delegate then found the applicant had not met the criteria for the grant of a Regional Employer Nomination visa.

12. Next, the delegate considered cl.187.311 (relating to family members). However, as neither applicant was a member of the family unit of a person who satisfied the primary criteria for a subclass 187 visa, cl.187.311 was not met.

13. The delegate then refused the Regional Sponsored Migration Scheme (subclass 187) visa.

14. The Tribunal notes the nomination approval application related to this case (AAT # 1703302), has been approved (by Tribunal decision dated 7 November 2018). Therefore, the applicant satisfies this criteria for the visa. For the reasons set out in AAT # 1703302, the Tribunal is satisfied the person who will employ the applicant is the person who made the nomination; that the nomination has been approved and has not been subsequently withdrawn; that 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); that the position is still available to the visa applicant (and she has worked in the position since around March 2016); and that the visa application was made no more than six months after the nomination of the position was approved (the visa application was made 15 March 2016 - the nomination was approved 7 November 2018). Therefore, cl.187.233(3) is met.

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

    DECISION

16. 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:

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

    Mr S Norman
    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.