SINGH (Migration)

[2020] AATA 852

SINGH (Migration) [2020] AATA 852 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARKIRAT SINGH

CASE NUMBER:  1819614

HOME AFFAIRS REFERENCE(S):          BCC2017/2292439

MEMBER:Mr S Norman

DATE:31 January 2020  

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

Statement made on 31 January 2020 at 11:26am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Cook – approved nomination – position is still available to the applicant –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 187.233, 187.242, 187.311

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 (the Act).

2. The applicant applied for the visa on 28 June 2017. 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 (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 Direct Entry stream, to work in the nominated position of Cook (ANZSCO: 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 21 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the Director of Annilax Enterprises Pty Ltd (Mr Anand GOPINATH). The applicant was represented in relation to the review by his registered migration agent.

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. 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 r.1.13A and r.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.

10. On 17 May 2018, the nomination lodged by Annilax Enterprises Pty Ltd, being the nomination referred to in cl.187.233(1) was refused by a delegate of the Minister. By letter of 18 May 2018, the Department invited the applicant to comment on this information. No response was recorded by the delegate. As the nomination application had been refused, cl187.233(3), and cl.187.233 were not met.

11. Next, the delegate assessed the applicant under the Temporary Residence Transition stream. Under regulation 187.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant did not meet cl.187.223. Since clause 187.223 is not satisfied, the delegate refused the visa under the Temporary Residence Transition stream.

12. The delegate then assessed the applicant under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant did not meet the requirements of cl.187.242. Since cl.187.242 is not satisfied, the criteria for the grant of the visa under the Agreement stream was not satisfied.

13. Next, the delegate assessed the visa application under cl.187.311 (member of the family unit). However, as no applicant met the primary criteria for the grant of the visa, none were entitled to the grant of the visa as a member of the family unit of a person who had.

14. As clause 187.233, 187.223, 187.242 and 187.311 are not satisfied, the delegate refused to grant the Regional Sponsored Migration Scheme (subclass 187) visa.

15. By decision dated 31 January 2020, the Tribunal approved the nomination of the applicant’s nominator (Annilax Enterprises P/L – AAT # 1816532). Therefore the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

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

    DECISION

17. 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

    Mr S Norman
    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.