Singh (Migration)

[2017] AATA 166

Singh (Migration) [2017] AATA 166 (1 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhraj Singh

CASE NUMBER:  1602146

DIBP REFERENCE(S):  BCC2015/1837355

MEMBER:Marten Kennedy

DATE:1 February 2017

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations.

Statement made on 01 February 2017 at 3:17pm

CATCHWORDS

Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – cl 187.233 – Nominated position of Cook – Nomination approved and not withdrawn

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 187.233, r 5.19(4)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration 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 to the Department of Immigration for the visa on 26 June 2015. 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). In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.

4. The delegate refused to grant the visa as a consequence of the Department’s related decision to refuse to approve a corresponding nomination of a position by the applicant’s employer, Taste of the Himalayas India Pty Ltd.

5. Taste of the Himalaya’s Pty Ltd applied for review of that refusal.  Today, for the reasons I gave ex tempore in matter 1518047, I decided to set aside that refusal and to approve the nomination.

6. In these circumstances I will send the visa application back to the Department with directions reflecting that decision in that related matter.

   Nomination of a position

7. Clause 187.233 of Schedule 2 to the Regulations 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.

8. 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.

9. As a consequence of my decision today in matter 1518047, I find that:

   ·The position to which the application relates is the position nominated in an application for approval that sought to meet the requirements of r.5.19(4)(h)(ii) and in relation to which relevant declarations were made in the application for the visa;

   ·Taste of the Himalayas Pty Ltd is the nominating employer and will employ the applicant;

   ·The nomination is now approved and has not been withdrawn;

   ·There is no adverse information before me in relation to the nominating employer or any associates;

   ·The position remains available to the applicant, and indeed he is occupying the position now; and

   ·The visa application was made prior to the approval of the nomination.

10. In these circumstances, I find the requirements of cl.187.233 are met, and will remit the applications to the Department with a direction to that effect.

    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 of Schedule 2 to the Regulations.

    Marten Kennedy
    Member