Harjeet Kaur (Migration)

[2018] AATA 3563

Harjeet Kaur (Migration) [2018] AATA 3563 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

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

CASE NUMBER:  1607073

DIBP REFERENCE(S):  BCC2015/2578667

MEMBER:Denise Connolly

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the third named applicant.

Statement made on 16 August 2018 at 9:41am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338, 347
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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 4 September 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). 'Migration zone' is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories. The Tribunal notes that according to the Department's movement records, the secondary applicant, Miss Simar Kaur Khaira, departed Australia on 26 April 2015 and did not return by the time the application for review was lodged with the Tribunal on 18 May 2016. The Tribunal therefore finds that Miss Simar Kaur Khaira was not physically present in the migration zone at the time the application for review was lodged, and is therefore not permitted by s.347(3) to apply for review of the delegate's decision. The Tribunal finds that the requirements of s.347(3) have not been met by Miss Simar Kaur Khaira and it therefore does not have jurisdiction to review the decision made about Miss Simar Kaur Khaira.

4. 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 3 alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

5. 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 Café or Restaurant Manager.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

6. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the associated nomination application had not been approved.

7. The applicants were invited to appear before the Tribunal on 30 July 2018 to give evidence and present arguments. The applicants’ representative wrote to the Tribunal on 26 July 2018 advising that the applicants confirmed that they wished for the Tribunal to proceed with the application without a hearing. Accordingly the Tribunal has made its decision in this case without a hearing.

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

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. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

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 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 applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 14 March 2016 the nomination lodged by Savana Group Pty Ltd, being the nomination referred to in cl.187.233(1), was refused by the delegate. The delegate found that as the nomination had been refused the applicant did not meet cl.187.233(3), which requires that the Minister has approved the nomination.

13. Savana Group Pty Ltd lodged an application for review of the decision to not approve the nomination application. On 5 July 2018 the Tribunal affirmed the decision.

14. The Tribunal wrote to the applicants on 31 July 2018 inviting their comments on, or response to, the information that on 5 July 2018 the Tribunal affirmed the decision to not approved the nomination application made by Savana Group Pty Ltd. The Tribunal explained that this information is relevant because if relied on it would find that the applicant does not meet cl.187.233(3) and it would affirm the Department’s decision. The applicant did not respond.

15. On the basis of the evidence before it, the Tribunal finds the nomination made by Savana Group Pty Ltd, the nomination referred to in cl.187.233(1), has been refused. Therefore the nomination has not been approved and cl.187.233(3) is not met.

16. Therefore, cl.187.233 is not met.

17. 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.

    DECISION

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

    Denise Connolly
    Member