Singh (Migration)

[2023] AATA 3691

Singh (Migration) [2023] AATA 3691 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jagdev Singh

Ms Sandalpreet Kaur

REPRESENTATIVE:  Ms Jennifer Fong (MARN: 0955711)

CASE NUMBER:  1927174

HOME AFFAIRS REFERENCE(S):          BCC2017/829137

MEMBER:Angela Julian-Armitage

DATE:30 October 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visa visas for reconsideration, with the direction that, for a:

·the first named applicant meets cl 187.233 of Schedule 2 to the Regulations; and

·the Tribunal does not have jurisdiction to review the application for the secondary applicant.

Statement made on 30 October 2023 at 8:29am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Motor Mechanic – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 March 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 (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 seeks the visa in the Direct Entry stream, to work in the nominated position of “motor mechanic”.

5. The delegate refused to grant the visas due to the applicant not meeting cl 187.233 of Schedule 2 to the Regulations as the role was not subject to an approved corresponding nomination.

6. The Tribunal scheduled the initial hearing on 15 June 2023.  At the applicant’s request, this hearing was postponed to 6 July 2023.  On 29 June 2023, the applicant requested a further hearing postponement for a period of three months.  The Tribunal carefully considered the request and agreed to further postpone the hearing for one month and set down a case management hearing on 7 August 2023.  On 5 July 2023, the applicant, through his representative, again requested a further 3-month hearing postponement.  As the hearing scheduled on 7 August 2023 was a case management hearing, the Tribunal confirmed that the hearing would proceed on 7 August 2023.

7. On 4 August 2023, the applicant, through his representative, requested that the matter be determined on the papers together with that of his nominator. The reasons given for this adjournment were based on the nominator’s health issues evidenced by the appropriate medical certificates.

8. The Tribunal has considered all the evidence and material in coming to a decision in this matter.

9. With respect to the second named applicant, it is noted that she was not in the migration zone at the time of the visa application or at the time of the delegate’s decision nor was she here at the time of the review of the application made to this Tribunal. Consequently, thie Tribunal does not have jurisdiction to review the second named applicant’s application for review of the decision to refuse her visa.

10. It is worth mentioning that the primary applicant informed lodged a Form 1022 in order to inform Immigration that he and his wife has divorced. His representative also informed this Tribunal of this fact and provided a copy of a Divorce Order dated 17 March 2020 which terminated the marriage on 18 April 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the visa application is supported by an approved nomination.

    Nomination of a position

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

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

15. Based on the material and evidence before this Tribunal, the visa applicant is employed by the person who holds an approved nomination dated 13 October 2023. Furthermore, there is no remarkable information known to immigration about the nominator or a person associated with the nominator. The position is still available and is vital to the business given the principals current medical issues.

16. Therefore, the requirements in cl 187.233 are met.

17. Given the above findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As mentioned above, the Tribunal has no jurisdiction to determine the second applicant’s review for the reasons given.

    DECISION

18. 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 187.233of Schedule 2 to the Regulations; and

    ·the Tribunal does not have jurisdiction to review the application for the secondary applicant.

    Angela Julian-Armitage

    
    

    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.