1512427 (Migration)

[2016] AATA 3309

1512427 (Migration) [2016] AATA 3309 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kamaljit Kaur
Mr Harpreet Singh
Master Karamveer Singh

CASE NUMBER:  1512427

DIBP REFERENCE(S):  BCC2015/659162

MEMBER:Steve Georgiadis

DATE:24 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 24 February 2016 at 12:30pm

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 1 March 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). 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 Retail Manager (ANZSCO 142111). 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 as the nomination for the position had not been approved at the time of the delegate’s decision - [cl.187.233(3)].

6. The adult applicants appeared before the Tribunal on 24 February 2016 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants meet the criteria for grant of the visas. This includes whether the applicant satisfies the criteria under cl.187.233 for the grant of a Regional Employer Nomination (Permanent) (Class RN) visa including (inter alia) that the nomination for the position to which the application relates, has been approved and has not subsequently been withdrawn, and the position is still available to the applicant.

10. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material discussed available to it from a range of sources. A copy of the delegate’s decision of 2 September 2015 was included in the applicants’ application for review.

    Nomination of a position

11. 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.

12. 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.

13. The applicant was nominated by Lakshmi Sai Ganesh Pty Ltd under sub-regulation 5.19(4) for the position of Retail Manager (ANZSCO 142111).  This is the employer nomination that was refused by the Department on 28 July 2015. 

14. On 24 February 2016 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related MRT case-file number 1511077 for the reasons set out in the Decision Record for that case refusing the nomination. The nominator employer in that application did not appear at the scheduled hearing time and the matter was determined and finalised prior to the hearing of the present matter.

15. At the hearing, the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that without an approved nomination, the applicants would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visas and that the applications would, on that basis, be unsuccessful. The applicant conveyed to the Tribunal that she understood in such circumstances, it would not be open for the visa applications to be successful given this is one of the requirements.

16. Having considered the available evidence before it, the Tribunal is satisfied that the position of Retail Manager (ANZSCO 142111) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that cl.187.233(3) is not satisfied.

17. As cl.187.233(3) is not satisfied, cl.187.233 is therefore, not met.

18. 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 in respect of all applicants as members (spouse and child) of the applicant’s family unit who are applicants for the visa.

    DECISION

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

    Steve Georgiadis
    Member