Kahlon (Migration)

[2019] AATA 3112

Kahlon (Migration) [2019] AATA 3112 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Pranvit Singh Kahlon

CASE NUMBER:  1829788

HOME AFFAIRS REFERENCE(S):          BCC2018/1402312

MEMBER:Peter Emmerton

DATE:24 May 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 24 May 2019 at 11:31am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – member of family unit – primary applicant does not hold a Subclass 187 visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.08; Schedule 2, cl 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 September 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 (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 Temporary Residence Transition stream, as a secondary applicant and must therefore be a member of a family unit of a person who holds a subclass 187 visa.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.311 of Schedule 2 to the Regulations because they were not able to demonstrate that they were a member of a family unit of a person who holds a subclass 187 visa.

6. The applicant appeared before the Tribunal on 24 May 2019 via video, represented by his father Mr Simranjeet Singh Kahlon to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is a member of a family unit of a person who holds a subclass 187 visa.

9. Clause 187.311 requires that the applicant must be a member of a family of a person who holds a subclass 187 visa having therefore satisfied the primary criteria for cl.187.233.

10. The primary applicant in this case was his father, Mr Simranjeet Singh Kahlon. Mrs Ramanpreet Kaur Gill’s application was on the basis that, as a family member of Mr Simranjeet Singh Kahlon, she satisfied the secondary criteria. They both applied for a subclass 187 visa on 29 June 2016. The only decision provided by the applicant with his review application was that combined with his mother Mrs Ramanpreet Kaur Gill. The only decision the Tribunal is reviewing is the combined application with the secondary applicant Mrs Ramanpreet Kaur Gill.

11. The applicant, Master Pranvit Kahlon was born on 5 September 2017. Pursuant to r.2.08 of the Regulations, Master Pranvit Kahlon was taken to have made one combined visa application with Simranjeet Singh Kahlon and one combined visa application with Ramanpreet Kaur Gill on 5 September 2017.

12. On 19 February 2018 a delegate refused to grant Mr Simranjeet Singh Kahlon and Mrs Ramanpreet Kaur Gill 187 visas. The delegate did not make decisions in relation to the two deemed 187 visa applications made by Master Pranvit Singh Kahlon on 5 September 2017.

13. On 19 March 2018 Mr Simranjeet Singh Kahlon and Mrs Ramanpreet Kaur Gill applied for review with the Tribunal, MRT ref 1807368.

14. On 27 March 2018 a delegate refused the combined 187 visa application Master Pranvit Singh Kahlon made with Mrs Ramanpreet Kaur Gill. Master Pranvit Singh Kahlon was not notified of this decision until 8 October 2018

15. On 16 April 2018 Member D Connolly made a no jurisdiction decision in relation to the review application made by Mr Simranjeet Singh Kahlon and Mrs Ramanpreet Kaur Gill on 19 March 2018. This has resulted in the delegate’s decision to refuse their visa application continuing to stand, therefore they do not hold a valid subclass 187 visa.

16. On 11 October 2018, this review application was made to the Tribunal, (1829788) in relation to the delegate’s decision dated 27 March 2018 referred to in paragraph 15.

17. On 5 April 2019 the Tribunal wrote to the applicant pursuant to s.359A, advising that he was not a member of a family unit of a person who holds a subclass 187 visa, as a result of the no jurisdiction decision made by Member D Connolly on 16 April 2018.

18. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the primary applicant’s subclass 187 visa he cannot satisfy the provision of clause 187.311 of the Migration Regulations.

19. The applicant was advised that if he cannot satisfy cl.187.311 the Tribunal would affirm the decision of the Department of Immigration and Border protection refusing him the visa.

20. The applicant was invited to provide a written response by 23 April 2019. The letter advised the applicant that if he did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

21. The applicant responded to the letter on 23 April 2019.

22. The Tribunal again reiterated at the hearing under s.359AA, that ‘If Mrs Ramanpreet Kaur Gill doesn’t hold a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, Master Pranvit Singh Kahlon cannot satisfy cl.187.311 which requires you are a member 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.’

    Relevant criteria

23. In accordance with r.2.08 the review applicant is taken to have made two combined Subclass 187 visa applications at the time of his birth – one with his father Simranjeet Singh Kahlon and one with his mother Ramanpreet Kaur Gill. This review application relates only to the decision made in relation to the combined application he made with Ramanpreet Kaur Gill, refusing to grant him a Subclass 187 visa

24. An applicant for a visa must satisfy all of the relevant prescribed criteria. The criteria for the grant of a subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994.

    Secondary criteria

25. The secondary criteria for a Subclass 187 visa set out in Subdivision 187.31, and cl.187.311 requires the applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with the primary applicant.

26. Ms Ramanpreet Kaur Gill, the applicant’s mother failed to satisfy the secondary criteria or the primary criteria and was therefore refused the grant of a subclass 187 visa. As such Mr Pranvit Singh Kahlon, is not a member of the family unit of his mother, who holds a subclass 187 visa. The applicant does not meet clause 187.311 in relation to the application combined with that of Mrs Rananpreet Kaur Gill. The applicant therefore does not satisfy the secondary criteria for the grant of a Regional Sponsored Migration Scheme (class RN)(subclass 187) visa.

    Primary criteria

27. Clause 187.2, the Primary criteria, sets out those criteria applicable to a person who applies for a subclass 187 visa on the basis of meeting the primary criteria. Clause 187.212 sets out the criteria for all applicants seeking to satisfy the primary criteria. This includes that the position to which the application relates will provide to the applicant the employment referred to in the application for approval.

28. There is no evidence before the Tribunal that Mr Pravit Singh Kahlon holds an offer of employment that has been considered in an application for approval, therefore he cannot meet clause 187.212. This was confirmed by Mr Simranjeet Singh Kahlon’s testimony at the hearing. The tribunal accepts that the evidence presented to the Tribunal by the applicant’s guardian, on his behalf, does not claim to meet the primary criteria for a subclass 187 visa.

29. The applicant therefore does not satisfy the primary criteria for the grant of a Regional Sponsored Migration Scheme (class RN)(subclass 187) visa.

30. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Peter Emmerton

    
    

    Member