BAINS (Migration)

[2018] AATA 1981

BAINS (Migration) [2018] AATA 1981 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BALJINDER KUMAR BAINS
Miss SEERAT BAINS
Mrs AVNEESH AVNEESH

CASE NUMBER:  1615896

DIBP REFERENCE(S):  BCC2015/3904391

MEMBER:Warren Stooke AM

DATE:13 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 13 June 2018 at 2:19pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Baker – Change of ownership of the Bakery – Nominating sponsor failed to comply with the Tribunal’s request for information – Current employer not the applicant’s sponsor – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 351
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 Schedule 2 cl 187.233

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 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 16 December 2015. 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 Baker ANZSCO 351111. 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 visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations on the basis that the position subject to the application did not meet the requirements of and was not assessed under subregulation 5.19(3).

6. The applicants appeared before the Tribunal on 22 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

8. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

9. The Tribunal confirmed that the applicant had read the delegate’s decision of 16 September 2016 and that he understood the content of the decision.

10. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa.

11. At the commencement of the hearing the Tribunal outlined to the applicant the procedural process and explained the basic tenants of the criteria for a Subclass 187 visa as set out in Part 187 to the Migration Act 1994 (the Regulations) and specifically the requirements of cl.187.233

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this present case is whether the applicant satisfies el 187.223, specifically cl 187.223(2).

    Nomination of a position

14. 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).

15. 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.

16. As a threshold matter, the Tribunal asked the applicant, if the nominating employer had discussed the status of their sponsorship nomination with the applicant. The applicant advised that the nominating sponsor “knows everything about this” and that there had been a change of business with a new entity trading under a different name, which was advised to be Viet Bakery. As such, the applicant advised that he was still employed and had entered into a new contract with the new company. He stated that he sometimes had worked both as a part-time and as casual employee for the nominating sponsor and the new entity.

17. The applicant also stated that he had had a call from his lawyer who advised that the nominated position had been refused by the Tribunal.

18. The Tribunal then explained to the applicant the provisions of s359AA and the obligation of the Tribunal to provide particulars of any potential adverse information concerning the applicant’s application. As such, the Tribunal ensured that he understood the process. The Tribunal then put to the applicant via s359AA a copy of the decision arising from the Tribunal in Case No. 1613794 and provided the applicant with the opportunity to read and digest the content of the decision and to advise the Tribunal when he was ready to have a discussion regarding the decision.

19. Following an elapse of time for the applicant to digest the content of the decision, the Tribunal explained to the applicant that the nominating sponsor, Maulove (Vic) Pty Ltd, was asked by the Tribunal to provide relevant information to the Tribunal by a prescribed date of 3 April 2018, pursuant to s359(2), which at the request of the nominating sponsor was extended to 18 April 2018, by the Registrar. As noted in the decision pertaining to that case, the nominating sponsor failed to comply with the request for information.

20. The applicant stated that his agent had told him it was not relevant to reply, as the request for information related to the old employing business and not the current employing new business. The Tribunal informed the applicant that the nomination pertains to employment in the position nominated by Maulove (Vic) Pty Ltd, which is the only relevant nominating sponsor identified for the purpose of the current proceedings.

21. The Tribunal referred to the relevant paragraphs in the Tribunal decision, Case No. 1613794, namely par.8 and par.14 as follows:

    “8. An extension of time was applied for on 27 March  2018 by the applicant’s agent and an extension of time was granted by the Registrar until 18 April 2019, with the advice that the Tribunal may make a decision on the review without taking any further action to obtain the information. The agent forwarded correspondence to the Tribunal from the applicant, which was dated 17 April 2018, however the information required in relation to the Tribunal’s request of 19 March 2018 was not provided.

    14As there is no contemporary evidence before the Tribunal that would enable an assessment in accordance with r.5.19(3) the Tribunal is accordingly not satisfied that the applicant has demonstrated that they meet the requirements of r.5.19(3).”

22. The Tribunal notes that the applicant has maintained continuity of employment with the personnel who had a relationship with the nominating sponsor, but the current employing entity is not the sponsor that sought to engage the nominee. The evidence of the applicant confirmed that the nominee has a new contract of employment with the new business entity, which is not the nominating sponsor.

23. Therefore, cl.187.233 is not met.

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.

25. 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) but has decided not to refer the matter pursuant to s351 of the Migration Act 1958 to the Minister on the grounds of public interest. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Secondary applicants

26. The delegate also refused visas to the secondary applicants, who are included in the application.

27. There is no claim or any evidence before the Tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 187.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 187 visa. As the applicant does not satisfy the primary criteria for a subclass 187 visa, or any other subclass, the Tribunal finds that the secondary applicants also do not satisfy clause 187.311 and, therefore, the criteria for a subclass 187 visa, or any other subclass.

    DECISION

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

    Warren Stooke AM
    Member