Gill (Migration)

[2023] AATA 1733

Gill (Migration) [2023] AATA 1733 (2 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Palak Gill
Mr Sikander Bhatia

REPRESENTATIVE:  Mrs Ashrita Zeeshan (MARN: 0401052)

CASE NUMBER:  1920547

HOME AFFAIRS REFERENCE(S):          BCC2018/891420

MEMBER:Wan Shum

DATE:2 June 2023

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 02 June 2023 at 10:29am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or 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

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 24 February 2018. At the time of application, Class RN contained 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 Café or Restaurant Manager. The related nomination was made by Sarswat Pty Ltd (the nominator) on 23 February 2018.

5. A delegate of the Minister decided not to approve the nomination and as a consequence, the delegate in this matter refused to grant the visas finding that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations.

6. Both the nominator and the applicants sought review of those decisions. The applicants were represented in relation to the review by a registered migration agent. Following the decision by the Tribunal, differently constituted, to affirm the decision not to approve the nomination, the applicants were invited to appear before the Tribunal on 6 April 2023. Only the first named applicant attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the nomination has been approved. 

9. 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. As the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

10. 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.

11. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Café or Restaurant Manager. Under the section 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”.

12. On 18 August 2022, the Tribunal (differently constituted) affirmed the application for review made by the nominator.

13. During the hearing, the Tribunal put this information to the applicant for her comments or response as it considered that the earlier decision to affirm the application for review made by the nominator would be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal explained that this was because it meant that the nomination of the position related to her visa application for the subclass 187 visa has not been approved.

14. The Tribunal explained the consequences of the information being relied upon were that the Tribunal would find that she does not meet the requirements of cl 187.233(3) which means that she does not meet a primary criterion for the grant of the Subclass 187 visa.

15. The applicant was asked if she wished to seek additional time to comment on or respond to the information.

16. The applicant said that when she applied for the visa, she was definitely eligible and there was a contract between her employer and herself that she would work there once the nomination was approved. She claimed that she started working the day she applied for her Subclass 187 visa in February 2018 and added that while the nomination was refused, it was not refused because of her mistake or non-eligibility. The Tribunal notes that the reasons for refusal were because the restaurant would not be able to employ her for 2 years, which the applicant said was not the case. The applicant claimed that the restaurant was operating successfully 2 years later and liquidated last year in January, but that she had worked up until last day of operations on 6 January 2022, for a total of around 4 years from 2018 to 2022. She added that because the restaurant had not provided enough evidence to the Department, it has affected her life and visa for so many years. She said it was not fair from her point of view and explained that, while there were others willing to employ her and sponsor her, the Subclass 187 visa was closed and she is not able to apply for it any more. The applicant referred to attempts to apply for state nomination and that she had submitted an Expression of Interest for a Subclass 491 visa and provided evidence of this after the hearing which reflects that the EOI was submitted on 29 January 2022.

17. The Tribunal has considered this information but, as a decision was made on 18 August 2022 to affirm the decision not to approve the nomination made by Sarswat Pty Ltd, being the nomination related to her visa application, the only finding open to the Tribunal in respect of the issue in dispute is that cl 187.233(3) has not been met by the applicant.

18. Given this, 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 one of the requirements that must be met by a person seeking the visa in the Direct Entry stream has not been met, the decision under review must be affirmed.

    DECISION

20. 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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.