Grewal (Migration)

[2022] AATA 783

Grewal (Migration) [2022] AATA 783 (27 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Beant Kaur Grewal
Mr Gurjit Singh
Ms Diljot Kaur Rai

REPRESENTATIVE:  Ms Narinderpal Kaur (MARN: 0955184)

CASE NUMBER:  1903549

HOME AFFAIRS REFERENCE(S):          BCC2017/830135

MEMBER:Nicola Findson

DATE:27 March 2022

PLACE OF DECISION:  Perth

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

Statement made on 27 March 2022 at 9:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Employer Nomination Scheme) – direct entry stream – hairdresser – subject of approved position nomination – refusal of related nomination application affirmed on review – business closed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 2 March 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 Hairdresser (ANZSCO 391111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 15 February 2019, the applicant applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record.

7. The applicant appeared before the Tribunal on 16 March 2022, to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns in relation to holding a telephone hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent.  However, the migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

10. 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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.

12. On 4 February 2022, the Tribunal wrote to the applicants, via their registered migration agent, pursuant to s.359A of the Act.  This letter followed an outcome in a matter (1900743) which related to the nomination of the relevant position by the applicant’s employer, Sharma Traders WA Pty Ltd.  The letter invited the applicants to comment or respond to information that the application for approval of the nominated position made by Sharma Traders WA Pty Ltd was refused by a delegate of the Minister on 21 December 2018, and, although Sharma Traders WA Pty Ltd had sought a review of the refusal decision, on 18 October 2021 the Tribunal affirmed the Department’s decision to refuse the nomination. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination. It also indicated the information was relevant because cl.187.311 requires the secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 187 visa on the basis of satisfying the primary criteria for the grant of the visa.

13. On 18 February 2022, the Tribunal received a response from the applicants, which states: “Employer is not running that business anymore.  She closed down the business”.

14. At the hearing the Tribunal explained to the applicant the requirements of cl.187.233.  In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision.  The Tribunal also explained the requirements of cl.187.311 to be met by the secondary applicants. The applicant indicated that she understood the requirements for the visa.

15. The applicant told the Tribunal that she had worked for her sponsoring employer for two years before becoming pregnant and taking leave in December 2018.  She indicated to the Tribunal that the plan was for her to return to the position after she had spent some time taking care of her baby and once the visas had been granted. The applicant told the Tribunal that she did not know what happened with the business, because her employer did not answer any of her phone calls.

16. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

17. On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 2 March 2017, the applicant was the subject of a nomination application by Sharma Traders WA Pty Ltd for the position of Hairdresser.  The Tribunal further finds that the nomination application lodged by Sharma Traders WA Pty Ltd was refused by the Department on 21 December 2018, and although Sharma Traders WA Pty Ltd sought review of the refused nomination, on 18 October 2021, the Tribunal (differently constituted) affirmed the Department’s decision to refuse the nomination.

18. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.187.233(3) is not met.  It follows that 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 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.

20. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second and third-named applicants do not satisfy the secondary criteria for the visa.  Consequently, they do not satisfy cl.187.311 and the decision under review must be affirmed in respect of them

    DECISION

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

    Nicola Findson
    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.