Purba (Migration)

[2019] AATA 1388

Purba (Migration) [2019] AATA 1388 (2 April 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Parmjit Kaur Purba
Mr Manprit Singh
Master Gurman Singh

CASE NUMBER:  1705208

DIBP REFERENCE(S):  BCC2016/2040331

MEMBER:Penelope Hunter

DATE OF DECISION:  2 April 2019

DATE CORRIGENDUM

SIGNED:20 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the corrigendum dated 14 June 2019:

The words “The Tribunal directs that information that would identify the applicant (including information about family, friends or associates) not be published (under s.378 of the Migration Act 1958). This means that if this decision is published, names and other identifying material must be removed from or modified in the published version of the decision.” in the footer of the corrigendum should be removed.

Penelope Hunter
Member

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Parmjit Kaur Purba
Mr Manprit Singh
Master Gurman Singh

CASE NUMBER:  1705208

DIBP REFERENCE(S):  BCC2016/2040331

MEMBER:Penelope Hunter

DATE OF DECISION:  2 April 2019

DATE CORRIGENDUM

SIGNED:14 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words “Date of Decision: 2 March 2019” on the front page of the Decision Record should be replaced with “Date of Decision: 2 April 2019”.

Penelope Hunter
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Parmjit Kaur Purba
Mr Manprit Singh
Master Gurman Singh

CASE NUMBER:  1705208

HOME AFFAIRS REFERENCE(S):           BCC2016/2040331

MEMBER:Penelope Hunter

DATE:2 March 2019

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 02 April 2019 at 3:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Nursery person – subject of an approved nomination – nomination application 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 14 June 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 Temporary Residence Transition stream, to work in the nominated position of Nursery person.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination of the position was not approved.

6. The applicants appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the relevant nomination has been approved.

   Nomination of a position

10. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

11. The applicant was nominated by a partnership comprising of J.K Hederics, M.G. Hederics and Belah Heights Property Pty Ltd (formerly PWR Land Holdings Pty Ltd) trading as Belah Heights, for a position in the occupation of nursery person. On 21 February 2017, the nomination was refused by the Department.  The Belah Heights partnership applied for a review of the Department’s decision to refuse the nomination.

12. On 2 April 2019, the Tribunal decided to set aside the Department’s decision and substitute a decision approving the nomination.

13. As the relevant nomination has now been approved, it follows that the requirement in cl 187.233(3) is now met.

14. Given these findings, the appropriate course is to remit the visa application to the Minister for the remaining criteria for the visas for all applicants.

    DECISION

15. The Tribunal remits the applications 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.

    Penelope Hunter
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.