Sant Kaur (Migration)

Sant Kaur (Migration) [2022] AATA 497 (2 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sant Kaur .
Mr Navjot Singh .
Miss Navroop Kaur
REPRESENTATIVE:  Ms Hui Chi (MARN: 0853530)
CASE NUMBER:  1915405
HOME AFFAIRS REFERENCE(S):          BCC2018/847909
MEMBER:Warren Stooke AM
DATE:2 February 2022
PLACE OF DECISION:  Melbourne
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 2 February 2022 at 10:50am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – 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

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).
The applicants applied for the visas on 21 February 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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 Accountant (General) – ANZSCO Code: 221111.
The delegate refused to grant the visas on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the applicant did not provide evidence of an approved standard business sponsor for the position of Accountant (General) – ANZSCO Code: 221111.
The applicants appeared before the Tribunal on 25 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Choitelis, a director of the business, Vartel Developments Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.
The applicant was represented in relation to the review and the representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Accountant (General) – ANZSCO Code: 221111.
The applicant provided evidence that she holds the following qualifications, from the Holmes Institute and from her education in India:
a.Master of Professional Accounting (13 July 2015 to 11 July 2016)
b.Master of Business Administration (10 March 2017) Completed
c.Bachelor of Computer Application in India (September 2011 to April 2013)
The applicant stated that she prepares the BAS documentation for submission to the business’s external accountant, who prepares the tax return for the business.
An RSMS approval was provided in evidence of the approval on 9 October 2018 for the engagement of Ms Kaur as an Accountant (General) – ANZSCO Code: 221111 on a salary of $55,000 by the Gippsland Certifying Body.
The applicant provided evidence of a PTE English language test dated 8 April 2017 with a score of 65.
The applicant provided evidence of a contract of employment dated 21 April 2017 that contains a salary of $55,000 for full time employment upon the grant of an approved visa for a minimum period of 2 years.
The applicant stated that her husband works as an insulation installer and has no degree qualification.
Evidence of Mr Choitelis, Director of Vartel Developments Pty Ltd
The nominating sponsor provided evidence that the nominee undertakes the following duties in the performance of her role as an Accountant (General) – ANZSCO Code: 221111 with the business:
“Duty and Responsibilities:
·Assisting in formulating budgetary and accounting policies
·Preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
·Preparing financial reports, advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
·Examining operating costs and organisations' income and expenditure
·Providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements - Providing financial and taxation advice on business structures, plans and operations
·Preparing taxation returns
·Liaising with financial institutions and brokers to establish funds management arrangements
·Maintaining computer-based accounting systems (MYOB)
·Maintaining internal control systems
·Administrative tasks, invoicing, payments/processing, payroll
·May appraise cash flow and financial risk of capital investment projects”
The nominating sponsor stated the applicant undertakes - data entry; invoices from providers and suppliers and is an assistant to the General Manager. He stated that the nominee currently works 20 hours per week and will be engaged full-time upon the approval of a 187 visa with a minimum contract of 2 years employment and will be employed for an anticipated 3 years following the development of the Warrigal project.
The nominating sponsor stated that he engaged the applicant because of her qualifications and the energy to work.
The nominating sponsor stated that the position was advertised online three years ago.
Nomination of a position
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.
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.
On the basis that the nominating application for the position of Accountant (General) – ANZSCO Code: 221111 was approved by the Tribunal in a substitute decision in Case Matter: 1910666 on 1 February 2022, the Tribunal is satisfied that the applicant has an approved standard business sponsor for the position of Accountant (General) – ANZSCO Code: 221111.
Accordingly, the Tribunal is satisfied that the applicant meets cl.187.233 of the Regulations for the grant of a 187 visa.
On the basis that the primary applicant has satisfied the criteria for the grant of a 187 visa, it follows that the secondary applicants are members of a family unit that has satisfied the required criteria for the grant of a visa.
Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.
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 Regulation.
Warren Stooke AM
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.

[2022] AATA 497

2 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Appeal