Harjeet Kaur (Migration)

[2019] AATA 3026

Harjeet Kaur (Migration) [2019] AATA 3026 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Harjeet Kaur Harjeet Kaur
Mr Gurbinder Singh Khaira
Miss Simar Kaur Khaira

CASE NUMBER:  1702365

HOME AFFAIRS REFERENCE(S):          BCC2016/439528

MEMBER:Stavros Georgiadis

DATE:23 May 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 23 May 2019 at 4:17pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – 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

CASES
Varsi v Minister for Immigration & Anor [2018] FCCA 1280

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 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 29 January 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 the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 or cl.187.223 of Schedule 2 to the Regulations because no nomination had been approved.

6. The applicants appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. Mr Harneet Singh Arora also appeared before the Tribunal on behalf of the nominating corporation in the related matter 1622320 seeking approval of the nomination. For reasons of pragmatism the two hearings were held concurrently.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants meet the criteria for grant of the (Class RN) visas.

   Nomination of a position

10. Clause 187.233, as applicable in this case, is set out in the 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. 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.

12. The Tribunal notes from the Department file that the required declaration has been made in relation to the position nominated by the employer sponsor being that of Cook (ANZSCO 351411) to satisfy cl.187.233(1).

13. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator identified in the application for approval, Settlers Pty Ltd. Thus the applicant meets cl.187.233(2).

14. The accepted oral evidence before the Tribunal is that the position has not been subsequently withdrawn and is still available to the nominee, satisfying cl.187.233(4) and cl.187.223(5) respectively. 

15. The Tribunal notes 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).

16. On 21 May 2019 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19(4) in the related AAT case-file number 1622320 for the reasons set out in the Decision Record refusing the nomination. The visa applicant was present during the hearing involving the nominator, Settlers Pty Ltd,  As aforementioned, for reasons of pragmatism the two hearings were held concurrently.

17. At the hearing on 18 April 2019 the Tribunal put to the applicant that without an approved nomination, the applicants would not be able to meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visas and that the application for the visas would, on that basis, be unsuccessful. The Tribunal invited the applicant to comment on, or respond to, the information that in such a decision refusing the nomination, this would be the reason or part of the reason for affirming the decision under review. The Tribunal also would consider adjourning the review if it thought additional time to comment on, or respond was reasonably required. 

18. There was no additional time requested to comment or respond. The response at the hearing was that the applicants understand and accept that in circumstances where the nomination for the position is not approved, it would not be open for their visa applications to be successful as approval of the nomination is an essential requirement for the grant of the visas. The Tribunal again took steps at the end of the hearing to ensure the applicants understood this requirement and accepts the submissions made on their behalf, that in circumstances where the nomination is refused, it would not be necessary to conduct a further hearing in respect of the requirements for the Subclass 187 visas. 

19. As aforementioned, on 21 May 2019 the Tribunal affirmed the decision to refuse the nomination of the position by Settlers Pty Ltd. The Tribunal has not required any further evidence or submissions regarding the application for the visas as in these circumstances, by case authority in the matter of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58), it would be ‘futile’ because the visas cannot be granted in the absence of an approved nomination and there is no practical injustice as ‘no useful result could ensue’[1].

    [1] See R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR

20. Having considered the available evidence before it, the Tribunal is satisfied that the position of Cook (ANZSCO 351411) is the subject of the relevant nomination seeking to satisfy the requirements of r.5.19(4)(h)(ii) for the grant of the visa. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3). The Tribunal finds that the nomination of the position to which the application relates is not approved.  

21. Therefore, cl.187.233 is not met.

22. 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 other visa streams (Temporary Residence Transition). 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.

23. The Tribunal finds that the remaining visa applicants named in the application (the applicant’s spouse and daughter) are not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore, do not satisfy cl.187.311.

    DECISION

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

    Stavros Georgiadis
    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.