PASSI (Migration)

[2022] AATA 3354

PASSI (Migration) [2022] AATA 3354 (11 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MATTEUS PASSI

REPRESENTATIVE:  Mrs Prabhjit Kaur (MARN: 1574834)

CASE NUMBER:  1915403

HOME AFFAIRS REFERENCE(S):          BCC2018/741145

MEMBER:George Hallwood

DATE:11 August 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 11 August 2022 at 2:05pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Transport Company Manager – subject of an approved nomination – 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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Transport Company Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the application was not the subject of a nomination approved by the Minister.

6. The applicant appeared before the Tribunal on 11 August 2022 to give evidence and present arguments. As this was a combined hearing with that of the nominee, Jagtar Traders Pty Ltd case number 1915120, the Tribunal also received oral evidence from Mr Harwinder Hasra representing the nominee.

7. The Tribunal exercised its discretion to hold the hearing using Teams video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant (being in regional Australia). 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 videolink. The applicant raised no concerns in relation to the hearing being by video link and no issues that could impair the outcome of the hearing were apparent to the Tribunal. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the position to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia and meets the criteria set out in cl. 187.233.

    Nomination of a position

11. 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.

12. 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 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.

13. On 11 August 2022 the Tribunal approved the related nomination application of Jagtar Traders Pty Ltd, case number 1915120. The position to which this application relates was the subject of this application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position was the one that was the subject of the declaration made as part of that visa application. The associated nomination identified the applicant in relation to the position.

14. Having examined the documentary evidence and heard from the associated nominator at the hearing, the Tribunal is satisfied that:

    ·Jagtar Traders Pty Ltd who will employ the applicant is the person who made nomination;

    ·the nomination has now been approved and has not been subsequently withdrawn;

    ·the Tribunal is not aware of any ‘adverse information’ known to Immigration about Jagtar Traders Pty Ltd, the person who made the nomination, or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B

    ·the nominator has confirmed that the position of Transport Company Manager is still available to the applicant; and

    ·the visa application was made before the nomination of the position was approved.

15. The Tribunal is satisfied the applicant meets all of the requirements set out in cl 187.233.

    CONCLUDING PARAGRAPH

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

    decision

17. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations.

    George Hallwood
    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.