Singh (Migration)

[2018] AATA 1682

Singh (Migration) [2018] AATA 1682 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh

Ms Pawandeep Kaur

CASE NUMBER:  1712783

DIBP REFERENCE(S):  BCC2016/2877515

MEMBER:Stavros Georgiadis

DATE:26 April 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration in respect of all applicants, 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 26 April 2018 at 1:39pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Marketing Specialist (ANZSCO 225113) – Same full time position nominated by the sponsor – Application made within the timeframes – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 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 Immigration and Border Protection 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 applicants applied for the visa on 30 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. 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 Marketing Specialist (ANZSCO 225113). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the appointment to which the visa application by the applicant nominee relates has not been approved.

6. The applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ram Kumar, Director of the nominating employer, Sam Mills Pty Ltd, in the related matter AAT casefile 1710265.  The related matters were heard together.

7. The applicants were represented in relation to the review by his registered migration agent.

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 visa applicants meet the criteria for grant of the Subclass 187 visa.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. 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.

12. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made and finds that the position to which the application relates is that of Marketing Specialist (ANZSCO 225113) being the same as that nominated by the employer sponsor. Thus the applicant meets cl.187.233(1).

13. The Tribunal is satisfied, on the documentary evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Sam Mills Pty Ltd. Thus the applicant meets cl.187.233(2).

14. On 26 April 2018 the Tribunal set aside the decision under review (by oral decision) and substituted a decision approving the nomination under r.5.19 in the related AAT casefile 1710265. Thus the applicant meets cl.187.233(3).

15. At the hearing of this matter the applicant’s oral evidence, which the Tribunal accepts, is that the nomination has not since been withdrawn. This was confirmed by Mr Ram Kumar, Director, Sam Mills Pty Ltd on behalf of the nominating employer, and also the nominee, Mr Amandeep Singh, who continues to be available full-time for the position with the nominator. Thus the applicant meets cl.187.233(4) and cl.187.233(5) respectively.

16. The application for the visa was made on 30 August 2016 which is before the nomination was approved on 26 April 2018. As the visa application was made on a date which is no more than 6 months after the approval, the applicant meets cl.187.233(6).

17. Having regard to the Department’s file documents and the oral evidence at hearing, 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).

18. Therefore, overall cl.187.233 is met by the first named applicant.

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa in respect of all applicants.

    DECISION

20. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration in respect of all applicants, 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.

    Stavros Georgiadis

    
    

    Member