Ramanpreet Kaur (Migration)

[2021] AATA 420

Ramanpreet Kaur (Migration) [2021] AATA 420 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Ramanpreet Kaur
Mr Sukhdial Singh
Ms Mehakdeep Kaur Cheema
Mr Karanbir Singh Cheema

CASE NUMBER:  1808894

HOME AFFAIRS REFERENCE(S):          BCC2015/4043323

MEMBER:Andrew George

DATE:12 February 2021

PLACE OF DECISION:  Darwin

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 of Schedule 2 to the Regulations.

Statement made on 12 February 2021 at 5:28pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – 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 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 24 December 2015. 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Safety Inspector – 312611.

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 relevant nomination was refused by a delegate for the Minister for Immigration and Border Protection.

6. At the outset, the Tribunal notes that on the present date, in Case Number 1804179, the Tribunal set aside the decision to refuse the relevant nomination and substituted a decision approving the nomination. Indeed, in these proceedings the Tribunal adopts and repeats the relevant reasons in Case Number 1804179, which also includes an account of proceedings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

9. From the decision record in Case Number 1804179, the Tribunal is satisfied that:

   a.The person who will employ the applicant is the person who made nomination: paragraphs 17 to 22.

   b.The nomination has been approved and has not been subsequently withdrawn: paragraph 37.

   c.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): paragraph 29. For completeness, the Tribunal also notes the contents of the Australian Federal Police and Indian police clearance certificates as they relate to the applicant and the second named applicant.

   d.The position is still available to the applicant: paragraph 22.

   e.The visa application of 24 December 2015 was made no more than six months after the nomination of the position was approved on today’s date.

10. Therefore, cl 187.233 is met.

11. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. It is open to the Minister to reconsider the applications of the secondary applicants considering this decision.

    DECISION

12. 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 of Schedule 2 to the Regulations.

    Andrew George
    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.