RAJBIR KAUR (Migration)

[2019] AATA 2939

RAJBIR KAUR (Migration) [2019] AATA 2939 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajbir Kaur
Mr Tejinder Singh Samra
Miss Ashleen Kaur Samra

CASE NUMBER:  1708782

DIBP REFERENCE(S):  BCC2016/1273410

MEMBER:Katie Malyon

DATE:25 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

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

Statement made on 25 March 2019 at 5:11 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – 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 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).  

2. The applicants applied for the visas on 24 March 2016.  The delegate refused to grant the visas on 7 April 2017.

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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In the present case, Mrs Rajbir Kaur (the first named applicant), is seeking the visa in the Direct Entry stream to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because Mrs Kaur did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination made by her employer, Karen Fines and Elizabeth Fines T/A Otz Food (the Partnership), was not approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 15 March 2019, the Tribunal approved the nomination made by the Partnership for the position of Café or Restaurant Manager in respect of nominee Rajbir Kaur under r.5.19(4)(h) of the Regulations. Accordingly, cl.187.233(3) of Schedule 2 of the Regulations is now met.

8. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

9. The second named applicant and the third named applicant applied for their visas on the basis of being a member of the family unit of the first named applicant, Mrs Kaur.  Accordingly, their applications will be determined by reference to the outcome of Mrs Kaur’s application on remittal to the Department for reconsideration.

   DECISION

10. 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.

    Katie Malyon

    
    Member