Gagandeep Kaur (Migration)

[2018] AATA 3752

Gagandeep Kaur (Migration) [2018] AATA 3752 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Gagandeep Kaur
Mr Manraj Singh Kohri
Mr Sukhjinder Singh

CASE NUMBER:  1714530

DIBP REFERENCE(S):  BCC2016/3442925

MEMBER:Ian Berry

DATE:5 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 05 July 2018 at 9:36am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Temporary Residence Transition stream – Café or Restaurant Manager – Applicant doesn’t have a sponsor – Applicant departed Australia – Decision under review affirmed 

LEGISLATION
Migration Act 1958, s 65.
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 187.311

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (Act).

2. The applicants applied for the visas on 17 October 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 (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (Mrs Kaur) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because Mrs Kaur was not sponsored by a nominator.

6. Mrs Kaur appeared before the Tribunal on 25 May 2018 to give evidence and present arguments. Her appearance was by telephone and she gave evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter (who also appeared in the hearing by telephone) in the Punjabi and English languages.

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 the sponsorship of Mrs Kaur or any impediment in relation to her visa status which would prevent this Tribunal from either remitting this matter to the Department or finding that the Tribunal does not have jurisdiction to determine this matter.

   Nomination of a position

9. Clause 187.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

10. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19(7)).

    ·The position is still available to the applicant.

    ·The visa application was made no more than six months after the nomination of the position was approved.

    Background

11. From evidence given by Mrs Kaur at her hearing, she advised of having a Subclass 457 (Temporary Work (Skilled)) visa. Case file records indicated this visa having been granted on 6 August 2014. Before this time she had been granted student visas after entering Australia on 24 September 2009 with her husband and child (collectively “applicants”).

12. Her evidence confirmed she secured a sponsor and worked as a restaurant manager with an organisation operating a restaurant business in Brisbane. She recalls working for about 18 months when the restaurant owner sold the business to a new owner. With this new owner she worked for a further five or six months.

13. Mrs Kaur confirmed having received correspondence from the Department that her visa is or was cancelled. She was uncertain as to her visa status. From a case file[1] dealing with this issue, the Department did cancel her visa. Mrs Kaur sought advice, the effect of which is that an application for review was made to this Tribunal.

    [1] T1, folio 6 in case file 1618345 copies located on this AAT case file on page 34.The Department’s decision to cancel Mrs Kaur visa was made on 26 October 2016.

14. This case file[2] revealed that Mrs Kaur, having had her visa cancelled, made the application to review the Department’s decision.

    [2] T1, folios 34. AAT case file 1618345.

15. The review hearing was on 29 May 2017[3].  Mrs Kaur did not attend. Mrs Kaur had engaged a migration agent who, she alleges, did not let her know of the date. Mrs Kaur and family were in Australia at that time and the hearing was in Brisbane. It is noted that the applicants were in Australia at the time of the hearing, as of 25 February 2018, she and her family departed Australia.

    [3] T1, folio 34 (folio 35 within folio 34). Decision of Member Bruce Henry affirming the Department’s decision.

16. It is from the Tribunal’s case file[4] on the cancellation that the following is revealed.

    [4] Case file 1618345.

17. Therefore, the facts are:

    a.The Department cancelled Mrs Kaur’s UC-457 visa on 26 October 2016.

    b.The Tribunal affirmed the Department’s decision to cancel her 457 on 29 May 2017.

    c.The Department refused her RN-187 visa application on 16 June 2017.

    d.On 6 July 2017, Mrs Kaur made an application to this Tribunal, to review the Department’s decision.

    e.The applicants) departed Australia on 25 February 2018. At that time, her 457 visa had been cancelled

18. In her evidence before the Tribunal, Mrs Kaur stated she does not have a sponsor.

19. Mrs Kaur sought only to satisfy the criteria for a Subclass 187 visa in the Temporary Residence 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

20. To meet clause 187.311 the applicant’s spouse and child (secondary applicants), must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 187 visa.

21. As Mrs Kaur does not satisfy the primary criteria for a Subclass 187 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 187.311 and, therefore, the criteria for a Subclass 187 visa.

    DECISION

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

    Ian Berry
    Member