Amandeep (Migration)

[2018] AATA 2693

Amandeep (Migration) [2018] AATA 2693 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep
Mr Kulwant Singh Sihra
Miss Avneet Kaur Sihra

CASE NUMBER:  1806917

DIBP REFERENCE(S):  BCC2017/2111913

MEMBER:Mary Sheargold

DATE:21 June 2018

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 21 June 2018 at 11:27am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Approval of nomination – Nomination withdrawn – Resigned – Not paid a salary – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2 cls 187.233, 187.311

CASES
Singh v MIBP [2017] FCAFC 105

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 15 June 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 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 Hair or Beauty Salon Manager. 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. On 7 March 2018, the delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 14 March 2018, the Tribunal received a review application from the applicants, and a copy of the delegate’s decision was included with the application.  No further documents or submissions were received by the Tribunal.

7. The applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

9. 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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.

11. At the hearing, the applicant gave oral evidence that she moved from Brisbane to Cairns to commence work with Wattlebird (Qld) Pty Ltd as trustee for The Kokomo Trust (Wattlebird), and that the director of Wattlebird offered to lodge a nomination application to employ the applicant on the basis that the applicant would not be paid until her Subclass 187 visa was granted.  The applicant gave evidence that she worked for Wattlebird for 6 months, for 6 days per week in that period, without being paid at all.  The applicant stated that after several months, she approached the director of Wattlebird and asked that she be paid some salary, even if it was below the salary agreed in her employment contract, so that she may cover her living expenses.  The applicant gave evidence that the director of Wattlebird declined to do this and threatened to withdraw the nomination application if the applicant ceased working.

12. The applicant told the Tribunal that by November 2017, she was no longer able to cope with being unpaid for her work, and so resigned.  The applicant told the Tribunal that a few weeks later, Wattlebird withdrew its nomination application.  The applicant gave further evidence that she engaged the services of a migration agent who advised her to wait for her visa application to be refused by the Department before taking any further steps to attempt to secure an alternate visa for her to work in Australia.  The applicant told the Tribunal that she realises now that this advice had led her to find herself in the situation she is in at present, and is the reason she did not withdraw her application prior to the Department making its decision and giving herself an opportunity to apply for another visa.

13. The applicant also gave evidence that her husband has ended their marriage and returned to India in March 2018 because the visa applications have been refused by the Department.  The applicant told the Tribunal that her husband and his family believe she did the wrong thing in terminating her employment and felt that she should have remained in her position, working unpaid, until the visas were granted.  The applicant told the Tribunal that on returning to India, her husband has taken her daughter from her parents and that her daughter is now in the care of her parents-in-law.  The applicant stated that she has only seen her daughter once since she was 7 months old, and believes that her only chance of regaining custody of her daughter is to be granted a visa to remain in Australia with her.

14. The Tribunal appreciates the totality of the circumstances the applicant has found herself in, and accepts the applicant’s evidence at the hearing that she is suffering from depression as a result of her current circumstances.  However, at the hearing, the Tribunal informed the applicant that even in circumstances such as hers, the Tribunal does not have the discretion to substitute an alternative nomination application in relation to this visa application.  The applicant acknowledged that she understood this.

15. The delegate’s decision notes that Wattlebird withdrew its nomination application with the Department on 7 December 2017. Therefore, the Tribunal finds that the applicant cannot satisfy cl.187.233 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination.

16. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

17. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.187.233 in relation to her application.  The nomination by Wattlebird was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

18. Therefore, cl.187.233 is not met.

19. 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.

20. Further, because the applicant is unable to satisfy cl.187.233, the secondary applicants are unable to satisfy cl.187.311(a) because they are not members of a family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  Therefore, the decision under review in relation to the secondary applicants must be affirmed.

    DECISION

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

    Mary Sheargold
    Member