Amandeep Kaur (Migration)

[2024] AATA 144

Amandeep Kaur (Migration) [2024] AATA 144 (9 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Amandeep Kaur
Master Mehtab Singh Braich

CASE NUMBER:  2317102

HOME AFFAIRS REFERENCE(S):          BCC2017/900588

MEMBER:P. Maishman

DATE:9 January 2024

PLACE OF DECISION:  Perth

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

Statement made on 9 January 2024 at 11:34am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – provision of nominated employment – business no longer operating – Australian citizen children – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.212

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 (Cth) (the Act).

2. The applicants applied for the visas on 7 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 (Cth) (the Regulations). At least one applicant must satisfy the primary criteria. 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 the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.212 of Schedule 2 to the Regulations because the delegate was not satisfied the position to which the application relates will provide the applicant the employment referred to in the application.

6. The applicants appeared before the Tribunal on 9 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Parminder Singh Chohan.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Departments file containing the information and documents received from the applicant.

9. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The history of the application is contained in the delegates decision record. The delegate relevantly notes the applicant and her sponsor provided separate written notifications dated 13 September 2023 advising that the sponsoring business ceased trading on 23 July 2023.  

10. The issue in the present case is whether the position to which the application relates will provide the applicant the employment referred to in the nomination application.

    Employment will be provided

11. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application.

12. The applicant applied for the visa on the basis that she had employment in the position of Cook (ANZSCO 351411) nominated by Mundy Gosto WA Pty Ltd.

13. The applicant and Mr Chohan, the director of Mundy Gosto WA Pty Ltd, gave consistent oral evidence that the business was no longer operating. Mr Chohan outlined family illnesses that have interfered with his ability to operate his business and undertook to recommence a business if the applicant as successful in obtaining the visa.

14. The Tribunal finds the nominated position related to the applicant’s visa application is not currently available. Consequently the nominated position cannot provide the applicant with the employment referred to.       

15. Accordingly, cl 187.212 is not met.

16. 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.

    Request for Ministerial Intervention

17. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

18. The applicant advises she has resided in Australia for 16 years. Her 14 year old daughter is an Australian citizen and has lived in Australia all her life. Her 9 year old son was born in Australia and will be eligible to become an Australian citizen in April 2024. The applicant is separated from the children’s father who returned to India and provides no support, and would not do so if the children lived in India. The applicant cannot leave her Australian citizen child(ren) in Australia if she is unable to secure residence. Neither of her children have an affinity with the Indian way of life and do not fluently speak the language. The applicant has no social support in India, with her mother and father being deceased. The applicant’s cousin is her only remaining relative in India. The applicant is aggrieved her visa application was not approved in the 6 years she was working in the nominated position. The loss of her employment was beyond her control and she has sought out alternative employment to financially support herself and her children, with funds available from her father’s property.

19. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    P. Maishman
    Member