Grewal (Migration)

[2018] AATA 5380

Grewal (Migration) [2018] AATA 5380 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Paramjeet Kaur Grewal
Mr Parminder Singh
Master Irshaan Singh Brar

CASE NUMBER:  1711418

HOME AFFAIRS REFERENCE(S):           BCC2016/1541241

MEMBER:Susan Trotter

DATE:19 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 November 2018 at 5:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – nomination application refused – 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 Immigration and Border Protection (the Minister) on 18 May 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 April 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 (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 Direct Entry stream, to work in the nominated position of Office Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) because the applicant was not the subject of an approved nomination as required.

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

7. On 1 November 2018, the Tribunal invited the applicants to comment on or respond to certain information before it. The Tribunal’s letter stated as follows:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·Department of Home Affairs (previously the Department of Immigration and Border Protection) (the Department) records indicate that on 24 April 2016, World Wide Immigration Consultancy Solutions Pty Ltd lodged an application for approval of an employer nomination in the Direct Entry stream under subregulation 5.19(4) of the Migration Regulations 1994 (the Regulations) with the Department. This application identified the nominated person as Ms Paramjeet Grewal.

   ·On 24 April 2016, you lodged an application for a Subclass 187 Regional Employer Nomination (Permanent) visas with the Department. In this application you provided the employer nomination details for the employer application lodged by World Wide Immigration Consultancy Solutions Pty Ltd.

   ·On 18 April 2017, the Department refused the employer nomination application lodged by World Wide Immigration Consultancy Solutions Pty Ltd on 24 April 2016 and World Wide Immigration Consultancy Solutions Pty Ltd applied for review of that decision. On 1 November 2018, the Tribunal affirmed the decision to refuse the approval of the nomination application made by World Wide Immigration Consultancy Solutions Pty Ltd in relation to Ms Paramjeet Grewal.

   ·As a result, there is no evidence as at the date of this letter that the nomination application lodged by World Wide Immigration Consultancy Solutions Pty Ltd in favour of Ms Paramjeet Grewal has been approved.

   ·There is also no evidence before the Tribunal that World Wide Immigration Consultancy Solutions Pty Ltd has lodged an application for approval of a nomination in the Temporary Residence Transition stream under subregulation 5.19(3) identifying Ms Paramjeet Grewal as the nominated person.

   ·Nor is there any evidence before the Tribunal to indicate that the position nominated by World Wide Immigration Consultancy Solutions Pty Ltd was in accordance with a labour agreement that is in effect and to which World Wide Immigration Consultancy Solutions Pty Ltd is a party.

   The above information is relevant to the review because if the Tribunal relies upon it in making its decision:

   ·The Tribunal may find that Ms Paramjeet Grewal does not meet the requirements of cl.187.233(3) of Schedule 2 to the Regulations at the time of the Tribunal’s decision because the nomination lodged by World Wide Immigration Consultancy Solutions Pty Ltd has not been lodged as required by that subclause.

   ·Further, the Tribunal may find that the position to which Ms Paramjeet Grewal’s visa application relates is not a position nominated in an application for approval under subregulation 5.19(3) such that Ms Paramjeet Grewal cannot meet the requirements of cl.187.223 of Schedule 2 to the Regulations at the time of the Tribunal’s decision.

   ·Further, the Tribunal may also find that the position to which Ms Paramjeet Grewal’s visa application relates was not a position nominated by World Wide Immigration Consultancy Solutions Pty Ltd in accordance with a labour agreement that is in effect and to which World Wide Immigration Consultancy Solutions Pty Ltd is a party such that Ms Paramjeet Grewal cannot meet the requirements of cl.187.242 of Schedule 2 to the Regulations at the time of the Tribunal’s decision.

   ·Accordingly, the Tribunal may find that Ms Paramjeet Grewal cannot meet the requirements of cl.187.233, cl.187.223 or cl.187.242 and, therefore, that the decision under review to refuse to grant the visa to Ms Paramjeet Grewal must be affirmed.

   Further, the information is relevant to the second and third named review applicants because cl.187.311 of Schedule 2 to the Regulation provides that secondary applicants meet the requirement of that subclause if they are members of the family unit of the primary applicant (that is relevantly Ms Paramjeet Grewal) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Accordingly, if the decision under review to refuse to grant the visa to Ms Paramjeet Grewal is affirmed and she is not the holder of a Subclass 187 visa, the secondary applicants will not be able to meet cl.187.311 as required.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 15 November 2018. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 15 November 2018, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 15 November 2018 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

8. On 15 November 2018, the applicants’ representative responded to the Tribunal’s invitation of 1 November 2018 as follows:

   We confirm that we have been instructed by our client – Ms Paramjeet Kaur Grewal – to acknowledge the information contained within your letter dated 1 November 2018.

   The Clients have no further instructions other than to indicate to you that they are prepared to receive the Tribunal’s decision to affirm the Department’s decision.

9. The applicants have thereby consented to the Tribunal proceeding to make a decision on the review without appearing before it: subparagraph 360(2)(b) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

12. 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.

13. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made the nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)  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;

    (d)  the position is still available to the applicant, and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

14. As noted in the Tribunal’s 1 November 2018 letter to the applicants, the evidence before the Tribunal is that the nomination application lodged by World Wide Immigration Consultancy Solutions Pty Ltd on behalf of the applicant was refused by the Department on 18 April 2017 and on 1 November 2018 the Tribunal affirmed that decision[1]. As a result, the Tribunal finds that the applicant does not meet the requirements of cl.187.233 at the time of its decision.

    [1] Tribunal file no 1709856

15. 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 in relation to the applicant must be affirmed.

16. The Tribunal must also affirm the decision not to grant the second-named and third-named applicants a Subclass 187 visa as they do not meet the secondary visa criteria requiring each to be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    DECISION

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

    Susan Trotter
    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.