Amanpreet Kaur (Migration)

[2019] AATA 4430

Amanpreet Kaur (Migration) [2019] AATA 4430 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amanpreet Kaur

CASE NUMBER:  1705942

HOME AFFAIRS REFERENCE(S):           BCC2016/2139847 EGOBU41XQ7

MEMBER:Jennifer Cripps Watts

DATE:2 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 October 2019 at 6:14pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Dressmaker or Tailor – bogus document – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.213, 187.233; Schedule 4, PIC 4020

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 and Border Protection (the delegate) 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 for the visa on 23 June 2016. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Dressmaker or Tailor.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.213(1) of Schedule 2 to the Regulations because they found she did not satisfy the character requirement, Public Interest Criteria (PIC) 4020, contained in Schedule 4 to the Regulations, because the delegate found the applicant had given to the Minister, with her visa application, a bogus document or information that is false or misleading in a material particular.

6. As required by s.360 of the Act, on 29 August 2019, the Tribunal sent the applicant a written invitation to attend a scheduled hearing on 2 October 2019 and, in the invitation, gave details of another issue arising.  The applicant was informed of the following:

   ‘It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.

   Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review.  If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination the decision to refuse to grant you a Subclass 187 visa must be affirmed.  Lodging a new nomination application will not enable you to meet the criteria for the visa.  However, this is a matter for the presiding Member to determine.’

7. The applicant responded to the Tribunal’s hearing invitation and indicating she would attend and required a Hindi interpreter.  One was provided.

8. The applicant appeared before the Tribunal on 2 October 2019 to give evidence and present arguments.

9. The applicant, when she lodged the review application, was represented by her registered migration agent, Ms Pareek.  On 23 September 2019, Ms Pareek notified the Tribunal that she was withdrawing her services.  A letter was sent by the Tribunal informing the applicant of her representative’s correspondence and it was requested that she complete the necessary forms to give effect to the withdrawal.  It was confirmed by the applicant at the hearing that she had made a decision not to continue to use her migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant is the subject of a position nominated under r.5.19 of the Regulations.  The applicant’s visa was refused by the delegate because she did not meet cl.187.213, because she did not satisfy the character requirements of PIC 4020.  The Tribunal informed the applicant in writing that another issue on the review had arisen, that being that it appeared she could not meet cl.187.233 because she does not have a nomination.

    Nomination of a position

12. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. On 18 September 2019, the applicant was sent a letter containing adverse information.  Particulars were given:

    ‘Your visa was refused because you did not meet cl.187.213 because you did not satisfy Public Interest Criteria 4020. 

    A further issue that has arisen on the review is that it appears that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. 

    The nomination relating to your visa application was refused on 25 September 2017 and no review application was lodged with the Tribunal.’

14. In the s.359A letter, the applicant was invited to comment on or respond to the information, by 2 October 2019 (the day of the scheduled hearing), and informed that subject to her comments or response this would be the reason, or a part of the reason, for affirming the decision under review.  The applicant was advised that he could ask for an extension of time in which to provide the comments or response before 2 October 2019, giving a reason and, if he did so, the request would be carefully considered. 

15. As already mentioned, on 18 September 2019, the Tribunal provided the applicant with the opportunity to comment on or respond to adverse information, specifically that the nomination was not approved and there was no pending review of the decision to refuse the nomination.

16. The applicant did not respond to the s.359A letter in writing prior to the hearing, but appeared at the Tribunal hearing to give her comments and response in person, in her oral evidence.  She said she was aware that the visa was refused because she did not meet the character requirement, PIC 4020, because of ‘some mistake on my part submitting my documents’. 

17. The applicant seemed not to fully understand what it meant not to have a nomination relating to her Subclass 187 visa application.  She was reminded that in the s.359A letter sent on 18 September 2019 it was set out and explained.  Even though the Tribunal had already complied with its statutory obligation to give particulars of the adverse information and explain why it is relevant and why it would be the reason or a part of the reason for affirming the decision to refuse the visa, the Tribunal went through the letter with the applicant and explained it to her face to face.

18. The applicant responded with information that included the following matters.  She said that initially she came to Australia on a tourist visa, then found a sponsor to work in fashion.  She said she applied for a 187 visa, but the visa was refused because there was ‘no position there’.  The applicant said she was divorced in India and had come to Australia to change her life.  When the visa was refused the applicant said she had been living in Coffs Harbour, but that she then moved to Sydney.  She said she still works with her ‘sponsor’ doing part-time work of her own and that she has clients in India, Canada and England.

19. The applicant was again reminded that she cannot be granted a Subclass 187 visa without a sponsor and that it appears, on the evidence, that she does not have a sponsor.  The applicant responded that she wants to study and to do something with her future.  The applicant confirmed she got the s.359A letter and that she understood that without a sponsor she cannot meet the criteria for the grant of the visa.  The applicant was asked what result she was hoping for from the Tribunal and said that she wants ‘an option to find a sponsor so I can continue my business’. 

20. Relevant to this review, the criterion includes, essentially, that the position to which the application relates is the position nominated in an application for approval of a nomination and that the nomination has been approved.

21. Having carefully considered the evidence, the Tribunal is satisfied that the applicant was informed properly in writing of the adverse information about not having a nomination, that she was given a fair opportunity to respond or comment and elected to do so in her oral evidence at the scheduled hearing and that she confirmed she does not have an approved nomination relating to her Subclass 187 visa application that is the subject of this review.

22. Therefore, cl.187.233 is not met.

23. An applicant for a Subclass 187 visa must satisfy the primary criteria.  As the applicant does not satisfy cl.187.233, it is not necessary for the Tribunal to consider whether she meets the other primary criteria.

24. 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

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

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT A

    187.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.