Gurinder Kaur (Migration)

[2021] AATA 1324

Gurinder Kaur (Migration) [2021] AATA 1324 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurinder Kaur
Mr Kulwant Singh Bhangu
Master Abhijot Singh Bhangu

CASE NUMBER:  1816560

HOME AFFAIRS REFERENCE(S):          BCC2016/3687705

MEMBER:Wan Shum

DATE:29 March 2021

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 29 March 2021 at 9:58am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café and 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 4 November 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 (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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Café and Restaurant Manager. The related nomination was made by Sunshine Gourmet Foods & Catering Pty Ltd on 4 November 2016.

5. The nomination was subsequently refused on 27 March 2018.

6. As a consequence, the delegate refused to grant the visa to the applicant, finding that she did not meet cl.187.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicant had sought review of the refusals. On 18 September 2020, the Tribunal (differently constituted) affirmed the delegate’s decision not to approve the nomination.

8. The applicant appeared before the Tribunal on 24 March 2021 to give evidence and present arguments by MS Teams audio.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. This requirement is set out in clause 187.233 which appears 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.

12. 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 r.1.13A and r.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.

13. 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 and 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”.

14. The Tribunal (differently constituted) affirmed the delegate’s decision not to approve the nomination.

15. During the hearing, the applicant confirmed that her visa application was made in respect of the Café or Restaurant Manager nomination made by Sunshine Gourmet Foods & Catering Pty Ltd. The Tribunal referred to the decision on 18 October 2020 to affirm the decision not to approve the nomination and she claimed that her husband had bought the business to kick her out. The applicant said that her husband and his new partner, who is an Australian citizen or permanent resident, were running the restaurant together and that it was not her fault. The information before the Tribunal indicates that her husband is currently an officeholder and shareholder of the company. She added that her husband had already married and gained custody of their son as she was not financially stable at the time. The applicant referred to being physically and mentally abused, that she has been in Australia from 2009 till now and that she has no options and cannot go back. She is single. During the hearing, the Tribunal queried whether the second and third named applicants were still part of the review. Following the hearing, the applicant wrote in her email that they are “not connected with her [any] more” because she had her husband were separated since 30 May 2018 and to “please clear it in decision”. However, no formal withdrawal has been received in respect of, or by, the relevant parties. The applicant may wish to consider informing the Department that she and the second named applicant are no longer spouses if she has not already done so.

16. The applicant claims that she is currently employed but the application the subject of this review cannot be approved based on a new nomination. The applicant’s current employer, Mr Mandeep Singh, affirmed his understanding of her circumstances at the hearing.

17. While the Tribunal has sympathy for the applicant, there is no dispute in this case that the nomination made by Sunshine Gourmet Foods & Catering Pty Ltd has not been approved. As the position to which this application relates has not been approved, cl.187.233(3) is not met. Therefore, cl.187.233 is not satisfied.

18. 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 decisions under review must be affirmed.

    DECISION

19. 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 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.