Bains (Migration)

[2022] AATA 1796

Bains (Migration) [2022] AATA 1796 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kamaljeet Kaur Bains
Mr Inderpreet Singh

CASE NUMBER:  1906133

HOME AFFAIRS REFERENCE(S):          BCC2017/1704698

MEMBER:Terrence Baxter

DATE:7 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 07 June 2022 at 10:38am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – refusal of related nomination application affirmed on review – joint hearing of nomination and visa reviews – nominating business closed and applicant seeking new sponsor – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 187.311

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 12 May 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). 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook for PKJS (Australia) Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 25 February 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 18 January 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 187 visa, as he did not meet the secondary visa criterion (cl 187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 15 March 2019.

8. The applicant appeared before the Tribunal by video conference on 13 April 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the nomination application of the nominator.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

10. The applicant was represented in relation to the review until 31 May 2021 by a registered migration agent. On that date, the applicant notified the Tribunal that she withdrew the previous authorisation of the representative in the matter. At the hearing, the applicant stated that she wished to proceed with the hearing without being represented.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 1.13B of the Regulations); 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Cook approved, with the applicant as nominee, on 12 May 2017. The nomination application was refused on 18 January 2019 and the nominator sought review of that decision with the Tribunal on 5 February 2019.

16. On 4 May 2022, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

17. On 9 May 2022, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 4 May 2022, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by PKJS (Australia) Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl 187.233(1).

    If we rely on this information in making our decision, we may find that Ms Bains does not meet cl 187.233(3), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mr Singh does not meet the secondary visa criterion cl 187.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 187 visa, and affirm the decision under review in respect of his application.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 23 May 2022.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. On 23 May 2022, the applicant contacted the Tribunal by email, acknowledging the Tribunal’s invitation to comment on or respond to the information regarding the affirming of the decision not to grant the nomination application, and advising that she was seeking employment from another potential employer. The applicant requested “some time” to pursue that possible employment. On 24 May 2022, the Tribunal notified the applicant that an extension of time to respond to the invitation of 9 May 2022 had been allowed until 1 June 2022.

19. On 1 June 2022, the applicant again contacted the Tribunal by email requesting a further extension of time to, in her words, “find potential employer to shape up my future”. The Tribunal considered that the applicant was not actually seeking an extension of time to respond to the invitation of 9 May 2022 but was seeking an unspecified adjournment of the review application to enable her to pursue employment prospects. The Tribunal notified the applicant on 1 June 2022 that her further request for an extension of time had not been allowed.

20. Although the applicants have not specifically requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 25 February 2019 of the reasons for the visa application being refused. The Tribunal has also taken into account that the first named applicant was advised at the hearing on 13 April 2022 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

21. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 187.233 and cl 187.311 of Schedule 2 to the Regulations.

22. The Tribunal notes that the application for nomination for the position of Cook has not been approved. The Tribunal heard from the director of the nominator that the nominating business had begun to suffer financial losses in 2018 and had continued to trade until September 2021. The first named applicant stated that she had been employed by the nominator until July 2021 and that she had personally performed all tasks associated with the conduct of the business until that time. She said that the business had closed for reasons not attributable to the performance of her duties and that the closure was not due to any mistake on her part.

23. The Tribunal accepts that the closure of the nominator’s business was in no way attributable to the performance by the applicant of her duties as Cook. However, as there is no approved nomination for the purposes of this application, cl 187.233(3) is not met.

24. Therefore, cl 187.233 is not met in relation to the applicant.

25. 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.

26. In relation to the second named applicant, the Tribunal notes that cl 187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant be a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named applicant does not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.

    DECISION

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

    Terrence Baxter
    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.