Gill (Migration)

[2023] AATA 660

Gill (Migration) [2023] AATA 660 (20 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rippandeep Kaur Gill
Mr Karanbir Singh

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  1933691

HOME AFFAIRS REFERENCE(S):          BCC2017/4833431

MEMBER:Namoi Dougall

DATE:20 March 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 20 March 2023 at 11:17am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – restaurant manager – subject of approved position nomination – refusal of related nomination application affirmed – no response to tribunal’s invitation to comment after extension of time – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 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 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 18 December 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 Restaurant Manager (ANZSCO Café or Restaurant Manager 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application of Off the Green Pty Ltd (the nominating business) for the position to which the applicant’s visa application relates was not approved.

6. The applicant appeared before the Tribunal on 17 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yasin, a director of the nominating buisness.

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

8. On 1 March 2032, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting the applicants to comment on or respond to adverse information. The adverse information was that the primary applicant had applied for the Subclass 187 visa on the basis of a nomination of a position made by the nominating buisness and that on 1 July 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination which was affirmed by the Tribunal on 28 February 2023.

9. On 15 March 2023, the applicant requested additional time to collect documents in support of her response. Given the circumstances of this matter, and in particular the inevitable lack of satisfaction of a visa requirement, the Tribunal granted the applicants an extension of time until 17 March 2023 respond to the Tribunal’s letter of 1 March 2023.

10. The applicants did not respond to the Tribunal’s letter of 1 March 2022 by 17 March 2023.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requirements of reg.187.223.

Nomination of a position

1. 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.

2. 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.

3. As referred to above the Department on 1 July 2019 refused the nomination application lodged by the nominating business and the delegate’s decision was affirmed by the Tribunal on 28 February 2023. Therefore, there is no approved nomination to satisfy cl.187.233(3) and the primary applicant does not meet cl.187.233(3).

4. There is no evidence before the Tribunal to indicate that remaining applicants (the secondary applicants) meet the primary requirements for grant of the visa.

5. As the primary applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicants as members of the applicant’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the secondary applicants named, do not satisfy cl.187.311.

6. The applicants have 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

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

Namoi Dougall
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.