1504557 (Migration)

[2016] AATA 4002

1504557 (Migration) [2016] AATA 4002 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sukhneet Kaur
Mr Hardeep Singh
Miss Evneet Kaur
Miss Simrat Kaur

CASE NUMBER:  1504557

DIBP REFERENCE(S):  BCC2014/1751399

MEMBER:Mary-Ann Cooper

DATE:29 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 29 April 2016 at 1:01pm

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 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 to the Department of Immigration for the visas on 17 July 2014. 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 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 Pastrycook. 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 visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. The applicants were represented in relation to the review by their registered migration agent.

7. On 12 April 2016 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that, if accepted, it considered would be the reason or part of the reason for affirming the decision under review. The Tribunal’s invitation letter indicated that on 8 April 2016, in a separate but related application for review, the Tribunal had affirmed the decision to refuse approval of the nomination application made by Leonti Investments Pty. Ltd. for the position in which the applicant was proposed to be employed.

8. The invitation was sent to the applicants, via their authorised representative, at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 26 April 2016, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. No written comment or response has been provided by or on behalf of the applicants within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that its invitation complied with the relevant statutory requirements.

10. The Tribunal has considered whether it should adjourn the review to allow the applicants additional time in which to provide further evidence to support their review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. In addition it notes that the applicants have had the benefit of representation from a registered migration agent whom it is reasonable to expect has an understanding of the requirements of the legislation, however, neither the applicants nor their representative have provided the requested comment/response within the prescribed period set for this purpose.

    [1][2002] FCA 617

    [2][2012] FMCA 28

11. Accordingly, the Tribunal has decided not to exercise its discretion to adjourn the review any further to allow the applicants more time in which to demonstrate that the applicant meets the requirements of clause 187.233(3) for the purposes of her subclass 187 visa application.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether there is an approved nominated position in respect of the applicant. 

    Nomination of a position

15. 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.

16. 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.

17. The Tribunal finds the application for approval of the nominated position that relates to the applicant, made by her sponsoring employer Leonti Investments Pty. Ltd., was refused by Department on 8 December 2014. This decision was affirmed on review by the Tribunal on 8 April 2016 (MRT 1420472). The applicant has produced no evidence that there is any approved appointment concerning her made by Leonti Investments Pty. Ltd.

18. Therefore, on the evidence before it, the Tribunal is not satisfied at the time of its decision, there is an approved nominated position in relation to the applicant: cl.187.233(3). 

19. It follows that cl.187.233 is not met.

    CONCLUSION

20. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    Secondary applicants

21. The delegate also refused visas to the secondary applicants, the partner and children of the visa applicant and who are included in her application.

22. There is no claim or any evidence before the Tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 187.311, the secondary applicants must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 187 visa. As the applicant does not satisfy the primary criteria for a subclass 187 visa, or any other subclass, the Tribunal finds that the secondary applicants also do not satisfy clause 187.311 and, therefore, the criteria for a subclass 187 visas, or any other subclass.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Mary-Ann Cooper
    Member