Sonia (Migration)

[2018] AATA 5781

Sonia (Migration) [2018] AATA 5781 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sonia Sonia
Mr Lakha Singh
Master Kartik Singh

CASE NUMBER:  1813118

HOME AFFAIRS REFERENCE(S):           BCC2017/1052547

MEMBER:Kate Millar

DATE:7 December 2018

PLACE OF DECISION:  Adelaide

DECISION: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.187.223 of Schedule 2 to the Regulations

Statement made on 07 December 2018 at 11:59am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – nomination refused – decision substituted – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.223

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 under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 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 (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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of café or restaurant manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination of the position had not been approved by the Minister.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the nomination of the position has been approved and has not subsequently been withdrawn.

   Nomination of a position

8. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

9. In addition, this criterion also requires that:

   ·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 located in regional Australia (as defined in r.5.19)

   ·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. In a decision of this same day, the Tribunal has set aside the decision not to approve the nomination of the positon and substituted a decision to approve the nomination.

11. The Tribunal has previously set aside a decision to take action against the sponsor, and there is otherwise no adverse information known about the sponsor or a person associated with the sponsor. 

12. The position is located in South Australia.  All of South Australia is specified as regional Australia.   

13. Ms Sonia is working in the position, and it is still available to her.  The visa application was made on 17 March 2017 and the nomination application was made 23 February 2017.  The application for the visa was made before the Tribunal substituted a decision to approve the nomination of the position. 

14. Therefore, cl.187.223 is met.

15. As Ms Sonia meets the primary criteria on which her application was refused, the secondary applicants may now meet the secondary criteria. 

16. Given these findings, the appropriate course is to remit the visa applications of all of the applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

17. The Tribunal remits the applications 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.187.223 of Schedule 2 to the Regulations.

    Kate Millar
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.