Chahal (Migration)

[2023] AATA 1413

Chahal (Migration) [2023] AATA 1413 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Gagandeep Kaur Chahal
Mr Iqbal Singh Chahal
Master Yuvraj Singh Chahal

REPRESENTATIVE:  Ms Suzanne Weel

CASE NUMBER:  1926780

HOME AFFAIRS REFERENCE(S):          BCC2018/898986

MEMBER:Penelope Hunter

DATE:1 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2023 at 10:15am

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Restaurant Manager – nominator’s business had ceased to operate – nomination application associated with the position was not approved –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 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 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 25 February 2018. 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 Restaurant Manager. The second named applicant is his partner and has sought only to satisfy the secondary criteria. The third named applicant is their child and has also only sought to satisfy the secondary criteria.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the related nomination application by the applicant’s sponsoring employer, Spice Chef Pty Ltd had not been approved. The applicants have submitted a copy of the decision record under review to the Tribunal.

6. On 27 March 2023, the Tribunal wrote to the applicants to invite them to appear before the Tribunal on 28 April 2023 via teleconference to give evidence and present arguments.

7. On 14 April 2023, the Tribunal wrote to the applicants pursuant to the provisions of s 359A of the Act inviting them to comment on information that it considered would be a reason or a part of the reason for affirming the decisions under review. The relevant information was information from the Australian Securities and Investment Commission (ASIC) register that Spice Chef Pty Ltd was deregistered on 22 April 2022, and subsequently that the Tribunal found on June 2022 that it did not have jurisdiction to review the decision to refuse the nomination application lodged by Spice Chef Pty Ltd. The Tribunal explained the relevance of the information and informed the applicants that if it relied on the information it may find that the relevant nomination had not been approved and/or that the position was not available to the applicant. The Tribunal may then go on to find that the applicant did not meet the requirement of cl 187.233(3) and clause 187.233(5) Schedule 2 to the Regulations and they would be reasons or part of the reasons for the decisions under review to be affirmed.

8. The applicant and the second named applicant appeared before the Tribunal on 28 April 2023. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages. The applicants were represented in relation to the review although their representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant satisfies cl 187.233(3) of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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); 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.

13. The applicant applied for the visa on the basis of a nomination in the position of Restaurant Manager by Spice Chef Pty Ltd. As set out in the delegate’s decision record this nomination was refused by the Department on 29 July 2019. On 14 August 2019, Spice Chef Pty Ltd applied to the Tribunal for a review of the Department’s decision to refuse the nomination.

14. The information provided by the applicant that the business closed in 2022, is consistent with the information disclosed to the applicants prior to the hearing that according to the ASIC register that the nominating employer of the applicant Spice Chef Pty Ltd was deregistered on 22 April 2022.

15. The applicant told the Tribunal that it was due to the actions of the owner of Spice Chef Pty Ltd that her position was gone. She claimed that she was still employed elsewhere in the occupation, that she had an appropriate skills assessment, had relevant qualifications, work experience and English language skills. She believed that she would otherwise have met the requirements for the visa if not for her employer closing the business. She told the Tribunal that the business had suffered during the Covid-19 pandemic, and had closed in 2022.

16. On the information before it, which the applicant does not dispute, as a consequence of the company being deregistered the Tribunal found on 21 June 2022 that it did not have jurisdiction to review the decision to refuse the nomination by the Department. The Tribunal finds that the relevant nomination has not been approved. It therefore follows that the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

17. It is not necessary for the Tribunal to make further findings the Tribunal also had regard to the fact that due to the deregistration of Spice Chef Pty Ltd it also is not satisfied that the position would still be available to the applicant and she does not met cl 187.233(5) of Schedule 2 to the Regulations.

18. While the Tribunal accepts that there were circumstances outside the applicant’s control, it does not have any discretion under the relevant legislation even if she did satisfy other related Subclass 187 visa criteria.

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. The second and third named applicants have applied for the visa as a member of the family unit of a person who satisfies the primary criteria. There is no evidence that the second or third named applicant would otherwise themselves meet the primary criteria.  As the Tribunal has found that the applicant does not satisfy one of the primary criteria it follows that the second and third named applicants do not meet the secondary criteria for the visa and the decision to refuse their visas is also affirmed.

    DECISION

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

    Penelope Hunter
    Member

    
    

    ATTACHMENT A

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

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.