GILL (Migration)

[2021] AATA 5573

GILL (Migration) [2021] AATA 5573 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amrita Kaur Gill
Mr Harjinderjit Singh Gill
Master Sartaj Singh Gill
Master Viraj Singh Gill

CASE NUMBER:  1823647

HOME AFFAIRS REFERENCE(S):          BCC2016/3387612

MEMBER:Wan Shum

DATE:9 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2021 at 2:33pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – hairdresser – subject of approved position nomination – nominating business no longer operating and applicant working in own business in same premises – refusal of nomination application affirmed – no response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233(3)

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 12 October 2016. Class RN contains 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 Hairdresser. The related nomination was made by SRAN Australia Pty Ltd (the nominator) on 12 October 2016.

5. The nomination was refused on 28 June 2018.

6. As a consequence, the delegate refused to grant the visas finding that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicants have sought review of these decisions and were represented in relation to the review by the same registered migration agent.

8. The applicant appeared before the Tribunal on 19 May 2021 by video using MS Teams to give evidence and present arguments. The representative assisted from a different location.

9. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination made by SRAN Australia Pty Ltd (the nominator) has been approved as required by cl 187.233. 

11. 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.

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. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Hairdresser. Under the question relevant to ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence: “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

14. The Tribunal had invited both the nominator and the applicants to a hearing on 19 May 2021 but only the applicants participated. The Director of the nominator was not available apparently due to work commitments. The applicant told the Tribunal that the nominator was no longer operating the hairdressing business and that she had commenced her own business from the same shop carrying out the same services. She claimed that the Director was still willing to sponsor her though. However, on the evidence before it, the Tribunal decided to affirm the delegate’s decision not to approve the nomination on 20 May 2021.

15. The Tribunal then wrote to the applicants on 24 May 2021 to invite them to comment on or respond to the information that it had not approved the nomination. No response has been received.

16. Given that the nomination has not been approved, the Tribunal finds that the applicant does not meet cl 187.233(3). Therefore, cl 187.233 is not satisfied.

17. 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

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

    Wan Shum
    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

    (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.