Chhibber (Migration)

[2023] AATA 3148

Chhibber (Migration) [2023] AATA 3148 (24 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kapil Chhibber
Mrs Heena Chhibber
Mr Vedansh Chhibber

CASE NUMBER:  1930840

HOME AFFAIRS REFERENCE(S):          BCC2017/3294281

MEMBER:Susan Reece Jones

DATE:24 September 2023

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 24 September 2023 at 1:59pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – café or restaurant manager – tasks of position – subject of approved position nomination – related nomination application refused and application for review withdrawn – applicant in home country – COVID travel restrictions – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii), 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 11 September 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 Cafe or Restaurant Manager (ANZSCO 141111).

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 Department determined that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister and did not meet 5.19(4)(h)(ii).

6. On 20 September 2019, the Department refused the nominator’s application for the nominated position as Cafe or Restaurant Manager for the nominator’s restaurant, Cantina Mexicana.

7. On 9 October 2019, the nominator lodged a review with the Tribunal.

8. On 26 February 2020, the applicant returned to India.

9. On 18 November 2022, the Tribunal wrote to the nominator’s representative pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the nominator to provide the Tribunal with further information in support of the nominator’s application.

10. On 25 November 2022, the nominator withdrew its application for the nomination of the applicant with the Tribunal.

11. On 2 May 2023, the applicants requested a hearing with the Tribunal.

12. On 29 August 2023, the Tribunal invited the applicants to a hearing.  

13. The applicants appeared before the Tribunal on 19 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant Mr Kapil Chhibber.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the relevant nomination has been approved as required by cl.187.233.

    Nomination of a position

16. 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.

17. 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.

    Nominator proceedings

18. The nominator’s business was Portrink Pty Ltd as Trustee for the Cavallaro Family Trust. The restaurant and the nominated position were located in Bendigo. 

19. On 20 September 2019, the Department refused the nominator’s application for the nominated position as Cafe or Restaurant Manager for the nominator’s restaurant, Cantina Mexicana.

20. On 9 October 2019, the nominator lodged a review with the Tribunal.

21. On 26 February 2020, the applicant returned to India.

22. On 18 November 2022, the Tribunal wrote to the applicant under s359(2) of the Migration Act 1994 (the Act) inviting the nominator to provide the Tribunal with further information in support of the nominator’s application.

23. On 25 November 2022, the nominator withdrew its application for the nomination of the applicant with the Tribunal.

    Applicant proceedings

24. Mr Chhibber advised the Tribunal that he commenced working for the applicant in June 2018 and did so until the end of 2019 following receipt of the Department’s decision to refuse the nomination.  

25. On 26 February 2020, the applicant returned to India and due initially to COVID-19 restrictions, he has remained domiciled in India since that time.

26. Following a request for a hearing with the Tribunal, the applicants appeared before the Tribunal on 19 September 2023, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, Mr Kapil Chhibber.

27. At hearing, the Tribunal explained to the applicant that in order for the applicant’s nomination to succeed, the applicant’s nomination must be the subject of an approved nomination. The applicant told the Tribunal at hearing that he understood that is the case.  

28. On the basis, the Tribunal finds that cl.187.233 (2) is not met as there is no approved nomination by Portrink Pty Ltd as Trustee for the Cavallaro Family Trust, and therefore cl.187.233 as a whole cannot be met by the applicant

29. Therefore, given the finding that cl.187.233 is not met, the appropriate course is to affirm the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

30. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry Transition 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 Transition stream have not been met, the decision under review must be affirmed.

31. In relation to the second, and third named applicants, Mrs Heena Chhibber and Mr Vedansh Chhibber, the nominee’s wife and child, the Tribunal must also affirm the decision not to grant them subclass 187 visas, as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

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

    Susan Reece Jones
    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.