Chawla (Migration)

[2021] AATA 5616

Chawla (Migration) [2021] AATA 5616 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Palki Chawla
Mr Rajiv Chawla
Master Aarav Chawla
Miss Angel Chawla

CASE NUMBER:  2100853

HOME AFFAIRS REFERENCE(S):          BCC2018/4515846

MEMBER:Mary Sheargold

DATE:1 June 2021

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 01 June 2021 at 3:05pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; rr 1.13, 5.19

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 (Cth) (the Act).

2. The applicants applied for the visas on 16 October 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 Café or Restaurant Manager, ANZSCO 141111.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application by Terrigal Memorial Country Club Limited for the position of Café or Restaurant Manager was not approved.

6. The first named applicant appeared before the Tribunal by telephone link on 24 May 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. 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 telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

7. 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. 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.

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 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.

11. At the hearing, Mrs Chawla told the Tribunal that her husband and a friend had facilitated a job interview for her and that she had been advised she was successful in obtaining the position.  The Tribunal notes Mrs Chawla stated that she is a Marketing Specialist, and that she currently works as a Marketing Manager for a security company on the Gold Coast and has obtained a skills assessment from the Queensland government for that role.  Mrs Chawla stated that her husband’s friend advised that her qualifications for the nominated position were according to the requirements, that he would hire her, and sponsor her for that role.

12. Mrs Chawla stated that since she was offered the position with Terrigal Memorial Country Club Ltd, she has not been able to contact anyone there, that she has tried several times to call them and that they have not answered her calls, but she noted that her skills assessment had been approved.

13. The Tribunal explained that the nomination application by Terrigal Memorial Country Club Limited had been refused by the delegate, and that based on the evidence before the Tribunal, the nominator had not appealed the delegate’s decision to the Tribunal.  The Tribunal explained that the effect of this was that the nomination application was not, and now could not be, approved.  The Tribunal explained that Mrs Chawla needed an approved nomination from Terrigal Memorial Country Club Ltd in order to meet the requirement in cl.187.233(3).  Mrs Chawla expressed her surprise to hear this, stating that she believed she would be given a positive result from the Tribunal at the hearing.

14. The Tribunal offered the applicants until 31 May 2021 to make any further written submissions in support of the application, especially with respect to whether Mrs Chawla had an approved nomination from Terrigal Memorial Country Club Ltd.  As at the date of this decision, no further written submissions have been received.

15. The nominator’s nomination application was refused by the Department. As the nomination application for the position to which the applicant’s Subclass 187 visa application relates has not been approved, it follows that the applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

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 first named applicant’s visa application, she cannot overcome her current inability to meet cl.187.233(3) in relation to her application.  The nomination by Terrigal Memorial Country Club Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

18. Therefore, cl 187.233(3) 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. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant Subclass 187 visas to the secondary applicants as they are not the members of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary criteria in their own right.

    decision

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

    Mary Sheargold
    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.