Chhabra (Migration)

[2020] AATA 4786

Chhabra (Migration) [2020] AATA 4786 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sonam Chhabra

CASE NUMBER:  1910681

HOME AFFAIRS REFERENCE(S):          BCC2018/967203

MEMBER:C. Packer

DATE:27 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 October 2020 at 10:51am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasan v MIBP [2016] FCCA 1049
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 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 28 February 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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.

3. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Restaurant Manager 141111.

4. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

5. The applicant appeared before the Tribunal on 27 October 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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.

8. 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.

9. In this case, on 27 February 2018 SUPERB CHEFS PTY LTD (the nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager 141111, and nominated the applicant. However, on 11 March 2019 a delegate of the Minister rejected the application. The nominator sought to appeal the nomination refusal decision. However, on 6 August 2019 the Tribunal (differently constituted) found that ‘The Tribunal does not have jurisdiction in this matter.’

10. On 2 October 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review.

11. On 14 October 2020 the applicant responded and stated:

    I made an application for the Regional Employer Nomination (subclass 187) visa on 28 February 2018 in the direct entry stream. I was sponsored by business SUPERB CHEFS PTY LTD for this visa. However, the nomination was refused by the department and subsequently by the tribunal as well.

    I do acknowledge that the Subclass 187 needs to be supported by an approved nomination under the clause 187.233 in Schedule 2 to the Migration Regulations 1994 (Cth), (the Regs). We are currently in the process of seeking a nomination from another sponsor that would support our current Subclass 187 application.

    We request you to allow us additional time to seek an approved nomination required for the grant of our Subclass 187 visa application.

12. At hearing the Tribunal discussed the foregoing information. It is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. This requirement could not be satisfied by a later nomination of a position made by a different employer, and on current authority a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria. [see Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. The Tribunal pointed out that it follows that where a nomination is refused, the visa applicant will not meet all of the requirements (cl.187.233).

13. The applicant responded that she wants further time to find a new nominator. The Tribunal then told the applicant that as a new nomination would not satisfy the requirements, the Tribunal did not agree to adjourn the review.

14. The Tribunal finds that there is no approved nomination and so cl.187.233(3) is not met.

15. 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

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

    C. Packer
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.