1607479 (Migration)

[2016] AATA 4261

1607479 (Migration) [2016] AATA 4261 (5 August 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1607479

DIBP REFERENCE(S):  BCC2013/2021280

MEMBER:Alison Mercer

DATE:5 August 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 05 August 2016 at 4:44pm

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 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 5 December 2013. 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 applicant applied as a family unit member of his then wife, Amarjot Kaur, who was the primary visa applicant.  They applied in the Direct Entry stream, as Ms Kaur had been nominated to work in the nominated position of Baker by her prospective employer, The Bhagwati International Pty Ltd as trustee for the Pathak Family Trust. 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 Ms Kaur did not meet cl.187.233 of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by her employer. The delegate found that the Department had refused the nomination application by her employer on 7 May 2014, and that the Migration Review Tribunal (as it then was) had affirmed that decision on 6 March 2015. As a result, Ms Kaur did not meet a mandatory criterion for the visa, and the applicant’s visa application was refused as he did not meet the secondary criterion in cl.187.311 to be a member of the family unit of a person who held a subclass 187 visa and there was no evidence that he met the primary visa criteria in his own right.

6. The Tribunal received a review application from the applicant on 17 April 2015.  It was accompanied by a copy of the delegate’s decision.  The application for review did not include Ms Kaur and the Tribunal has no record of her having sought review of the Department’s decision of 31 March 2015.

7. On 3 July 2015, the Tribunal invited the applicant to attend a hearing on 28 July 2015.

8. The applicant appeared before the Tribunal on that date to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicant told the Tribunal that he separated from his wife about 6 months before the hearing, as there were problems with the relationship. He discovered that his wife was withdrawing money from their joint account without his knowledge.  After they separated, he was told that she left the country.  He estimated that he found this out about 2 months before the hearing.  He was 90% sure this was true, but has had no contact with his (former) wife. 

10. When asked why he sought review of the Department’s decision to refuse him a subclass 187 visa under these circumstances, the applicant said that he was not aware of the requirements of the visa at the time he received the refusal decision, and friends told him to apply for review to be able to remain in Australia.  The Tribunal indicated that its view was that he either had to satisfy the primary or secondary visa criteria for a subclass 187 visa, and there was no evidence that he satisfied the primary criteria in his own right.  The applicant agreed.

11. The Tribunal put to the applicant pursuant to s.359AA of the Act the fact that the Tribunal’s records showed that his (former) wife did not lodge a review application in relation to the refusal of the subclass 187 visa.  The Tribunal explained that this was relevant to the decision under review in relation to him, as it indicated that he could not meet the secondary visa criteria as he was not a member of the family unit of a person who held a subclass 187 visa.  The Tribunal noted that if it found this to be the case, then this would be the reason to affirm the decision under review.  The applicant indicated he understood.  The Tribunal invited him to provide a response.  The applicant said that he had no comment to make.

12. The Tribunal made a decision to affirm not to grant the applicant a subclass 187 visa on 10 November 2015 on the basis that he did not meet cl.187.311 and there was no evidence that he met the primary criteria for the Direct Entry stream in his own right.

13. The applicant sought judicial review of the Tribunal’s decision on 2 December 2015 with the Federal Circuit Court of Australia (FCCA).  On 20 May 2016, the FCCA remitted by consent the Tribunal’s decision on the basis that the Tribunal had not complied with s.359AA as it had not advised the applicant that he could ask for additional time to respond to the information put to him by the Tribunal at the hearing on 28 July 2015.

14. On 5 July 2016, the Tribunal wrote to the applicant to invite him to attend a hearing on 29 July 2016.

15. The applicant attended the hearing on that date and confirmed that he understood the basis of the original Tribunal refusal decision, and the basis of the remittal by the FCCA.  The applicant told the Tribunal that his former wife had returned to India and applied for a divorce, to which he had agreed.  He said that he was in a new relationship with an Australian permanent resident.  They had been living together for about 1 month and they hoped that he could apply for a visa in due course on the basis of this relationship but they had not taken any steps to do so yet.

16. The Tribunal put to the applicant pursuant to s.359AA of the Act the fact that the Tribunal’s records showed that his former wife did not lodge a review application in relation to the refusal of the subclass 187 visa.  The Tribunal explained that this was relevant to the decision under review in relation to him, as it indicated that he could not meet the secondary visa criteria as he was not a member of the family unit of a person who held a subclass 187 visa.  The Tribunal noted that if it found this to be the case, then this would be the reason to affirm the decision under review.  The applicant indicated he understood.  The Tribunal invited him to provide a response, and advised that he could seek additional time to do so if he wished.  The applicant indicated he would respond immediately and said that he had no comment to make.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant meets cl.187.311.

19. Clause 187.311(a) requires that the applicant is a member of the family unit of a person who holds a subclass 187 visa on the basis of having satisfied the primary visa criteria.

20. As noted above, the applicant’s former wife Ms Amarjot Kaur was refused a subclass 187 visa on 31 March 2015 as she was found not to meet the primary criteria for the visa.  The applicant’s visa application was therefore also refused as he did not meet cl.187.311(a).

21. Subsequently, the applicant sought review of the decision of 31 March 2015 to refuse to grant him a subclass 187 visa but his wife did not.  There is no evidence before the Tribunal to suggest that Ms Kaur holds a subclass 187 visa.

22. Accordingly, as the applicant is not a member of the family unit of a person who holds a subclass 187 visa due to meeting the primary visa criteria, the Tribunal finds that he does not meet cl.187.311(a).  There is no evidence before the Tribunal that the applicant satisfies the primary visa criteria in the Direct Entry stream in his own right.

23. 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.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Alison Mercer
    Member