SINGH (Migration)

[2021] AATA 1193

SINGH (Migration) [2021] AATA 1193 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PRITPAL SINGH

CASE NUMBER:  1826998

HOME AFFAIRS REFERENCE(S):          BCC2016/2670371

MEMBER:Alan McMurran

DATE:30 March 2021

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations; and

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 30 March 2021 at 4:39pm

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

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 August 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic (General).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination by Riverina Allwreck Pty Ltd was not approved.

6. The applicant appeared before the Tribunal in a combined hearing with a review of the nomination refusal on 29 March 2021, to give evidence and present arguments. The Tribunal also received oral evidence from a director of the nominator, Mr John Rapley. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review by his registered migration agent, but who did not appear for the hearing.

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 applicant is the subject of an approved nomination under cl.187.233.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision.

11. 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.

12. 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.

13. On 30 March 2021, the Tribunal decided to approve the nomination and made an order substituting its decision.

14. The Tribunal finds therefore that the applicant is now the subject of an approved nomination, and cl.187.233(3) of Schedule 2 is met.

15. The Tribunal finds that the nomination has been approved and has not been subsequently withdrawn.

16. The Tribunal file for the applicant was subject to a certificate under s.375A of the Act. The applicant was provided with a copy before the hearing and asked to make any response. No response was made, and no inquiry sought by the applicant as to the content or reason for the certificate. The issue was not raised at the hearing. The Tribunal noted only that the certificate referred to disclosure being contrary to the public interest because there was a reference to a team responsible for a “ cohort of cases” under investigation. No other information was available to the Tribunal.

17. The Tribunal finds that the certificate was validly signed and dated. Its import, however, was irrelevant to the determination in these proceedings of the issue as to whether the nomination was approved. The nomination application has been remitted with substituted approval, and it follows that this visa application must also be remitted for further consideration, now that the nomination has been approved.

18. The Tribunal has found that the position nominated is still available to the applicant, who made the visa application no more than six months after the nomination of the position was approved. Therefore, cl 187.233 is met.

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. 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(3) of Schedule 2 to the Regulations; and

    ·cl 187.233 of Schedule 2 to the Regulations.

    Alan McMurran
    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.