Grewal (Migration)

[2022] AATA 5180

Grewal (Migration) [2022] AATA 5180 (13 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ramandeep Kaur Grewal

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2118376

HOME AFFAIRS REFERENCE(S):          BCC2019/6333387

MEMBER:Noelle Hossen

DATE:13 July 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 13 July 2022 at 2:27pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Federal Circuit Court remittal – ground for cancellation – non-commencement of employment within the prescribed period – genuine effort – exchanges between the applicant and migration agent – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 137Q

Migration Regulations 1994 (Cth), r 2.50AA

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 on 12 November 2020 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s 137Q of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 137Q on the basis that the applicant did not commence her employment referred to as the relevant employer nomination with J & J Pty Ltd within the period prescribed in the Regulations and she was unable to satisfy the Minister that she had made a genuine effort to commence the employment within the prescribed period and the reasons for not cancelling her visa were not sufficient to outweigh the ground for cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On the 6 December 2021 the Tribunal received the Federal Circuit Court Remittal Notice. The Reasons for Decision Court set out that :” The First respondent accepts that the second respondent overlooked cogent evidential material that was central to the first applicant’s claims and the Tribunal findings, namely, exchanges between the applicant and her then migration agent on or about the 6 November 2018, 22 November 2018, and the 19 December 2018, which sought to demonstrate that she made a genuine effort to commence employment within the prescribed period as required by Section 137Q (1) (b) of the Migration Act. The information was central and important and therefore material because of the considerations of the Tribunal.”

4. The applicant appeared before the Tribunal on 9 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s 137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s 137Q(3). The visas currently prescribed by reg 2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

   Does the ground for cancellation exist

8. Under s 137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in reg 2.50AA.

   The employment referred to in the related employment nomination:

   J& J Pty Ltd trading as Nanango Food Junction lodged a nomination application for a Regional Sponsored Migration Scheme visa which was approved on the 4 October 2018 whereby the applicant was nominated as a cook. The applicant was granted a Regional Sponsored Migration Scheme Subclass 187 visa on the 16 October 2018.The applicant was offshore when the application was granted, and she returned to Australia 2 weeks later on the 1 November 2018. She contacted her employer on the same day that she arrived to organise the start of her employment. He told her that he did not have a position for her.

   Whether the applicant commenced that employment in the relevant period:

   The applicant could not commence her employment as her employer told her that he did not have a position for her.

   If not, whether satisfied of genuine effort to commence that employment:

   After receiving notice from her sponsor that he did not have a position for her the applicant contacted her migration agent on the 6 November 2018 asking for advice. The applicant did maintain contact with the sponsor. She provided copies of text messages between her and her sponsor. She also provided messages of her attempts to resolve the matter as she sought the advice of her migration agent.  She said that he did not respond by text but by telephone as he would request that she pay him the sum of $40,000. He did not allow her to work in his establishment. The Tribunal is satisfied that she made a genuine effort to commence her employment.

9. For these reasons the Tribunal is satisfied that the relevant ground for cancellation in Section 137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

    Noelle Hossen

    
    

    Member