Sidhu (Migration)

[2022] AATA 3356

Sidhu (Migration) [2022] AATA 3356 (28 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gagandeep Kaur Sidhu
Mr Sukhpreet Singh

REPRESENTATIVE:  Ms Mateja Rautner (MARN: 1387375)

CASE NUMBER:  1918219

HOME AFFAIRS REFERENCE(S):          BCC2018/927541

MEMBER:Katie Malyon

DATE:28 September 2022

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 28 September 2022 at 5:28 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Car Rental Agency 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, Indian nationals Mrs Gagandeep Kaur Sidhu and Mr Sukhpreet Singh, applied for the visas on 27 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 2 alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In this case, Mrs Sidhu is seeking the visa in the Direct Entry stream to continue working in the nominated position of Car Rental Agency Manager with her nominating employer, the Trustee for the Palarwal Family Trust T/A Comet Car Hire and Port Douglas Car Hire ABN 20 213 043 085 (the Trustee).

5. The delegate refused to grant the visas on the basis Mrs Sidhu did not meet cl 187.233(3) of Schedule 2 to the Regulations because the Trustee’s nomination was refused on 24 May 2019. The provisions of cl 187.233 are set out in the Attachment to this decision.

6. On 28 September 2022, the Tribunal approved the nomination made by the Trustee for the position of Car Rental Agency Manager in respect of Mrs Sidhu under reg 5.19(4)(h)(ii) of the Regulations. Accordingly, cl 187.233(3) of Schedule 2 to the Regulations is now met.

7. Given this finding, the appropriate course is to remit Mrs Sidhu’s visa application to the Minister to enable consideration of remaining criteria for the visa. 

8. The second named applicant, Mr Sukhpreet Singh, applied for his visa on the basis of being a member of the family unit of Mrs Sidhu.  Accordingly, his application will be determined by reference to the outcome of Mrs Sidhu’s application on remittal to the Department for reconsideration.

   decision

9. The Tribunal remits the applications 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

   ATTACHMENT - Extract from Schedule 2 to the Migration Regulations 1994

   Subclass 187 – Regional Sponsored Migration Scheme

   …

   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.

   oOOo