Dhindsa (Migration)

[2020] AATA 5666

Dhindsa (Migration) [2020] AATA 5666 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mandeep Singh Dhindsa
Mrs Hardeep Kaur Sandhu
Mr Inayat Dhindsa

CASE NUMBER:  1815194

HOME AFFAIRS REFERENCE(S):          BCC2016/2970579

MEMBER:Sean Baker

DATE OF ORAL DECISION:  26 November 2020

DATE OF WRITTEN STATEMENT:         1 December 2020

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 1 December 2020 at 9:35am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 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 7 September 2016. 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.

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 nomination by Walker, Jayson, was refused.

6. 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 applicant. 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.

7. The applicants appeared before the Tribunal on 26 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Jaspreet Kaur Dhindsa and Varinder Kaur.

8. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 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. Prior to the hearing I sent the applicants a letter pursuant to s.359A, in which I put to them the sole issue in this case:

    ·     their visa applications had been refused by the Department on 3 May 2018, because the nomination mentioned in cl.187.233 in respect of the first named applicant had not been approved,

    ·     the decision not to approve the nomination by Walker, Jayson, was made by the Department on 14 March 2018.

    ·     Walker, Jayson applied for review of this decision at this Tribunal on 3 April 2018, and the Tribunal finalised the matter on the basis of a withdrawal of that application on 18 August 2020.

14. I explained that this information is relevant to the review because cl.187.233, requires that the nomination is approved by the Minister and has not subsequently been withdrawn. I noted that it is a requirement 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. I further noted that it is clear that this requirement cannot be satisfied by a later nomination of a position.[1] It was explained to the applicants that this may be the reason or a part of the reason for affirming the decision. It was also explained to the applicants that if the primary applicant did not satisfy the primary criteria for the grant of the visa, the secondary applicants would be unable to satisfy the secondary criteria for the grant of the visa.

    [1] Neither a later nomination of a position made by a different employer: Hasan v MIBP [2016] FCCA 1049, nor a further nomination in respect of the same position made by the same employer: Singh v MIBP [2017] FCAFC 105 at [88].

15. The applicants responded to the s.359A invitation, explaining that the primary applicant had moved from his work with the nominator to assist his sister to run her restaurant and function centre in Bendigo. He is managing the business. He notes that he understands why his visa was refused but has been working in a regional area for the last seven years. He provided a statutory declaration from his sister and the restaurant registration certificate.

16. At the hearing I explained the information in the s.359A letter to the applicants. They indicated they understood. The primary applicant explained that he had been unable to jeep in contact with Jayson, and the nomination had been refused because of errors made by his migration agent. He said he understood the situation and that he was unable to satisfy the criterion with a nomination from his sister. He asked me to speak to his witnesses despite this, which I did. His sister explained that the primary applicant had been looking after the business since August 2019 and he did all of the managing. She said she wished to apply for a nomination. I explained the situation to her. Ms Varinder Kaur also gave evidence, stating that the applicant was working and inquiring whether he could get a new nomination. I explained the situation to her.

17. As put to the applicant in the letter and as discussed with them at hearing, the nomination by Walker, Jayson, which was the basis for the primary applicant’s visa application was refused by the Department, and the Tribunal review of that nomination refusal was finalised by the Tribunal on the basis of a withdrawal of that application. I find therefore that the nomination has been refused and that it has therefore not been approved by the Minister. 

18. Therefore, cl 187.233 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. As the primary applicant does not meet cl.187.233, he cannot satisfy the primary criteria. There is no information before me to establish that the secondary applicants can meet the primary criteria. The secondary applicants cannot meet the secondary criteria as members of the family unit of a person who has satisfied the primary critera.

    DECISION

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

    Sean Baker
    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.