Kamaljit Kaur (Migration)

[2022] AATA 4162

Kamaljit Kaur (Migration) [2022] AATA 4162 (12 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms  Kamaljit Kaur
Mr Pushpinder Singh

REPRESENTATIVE:  Mr Shoaib Vahora (MARN: 0848555)

CASE NUMBER:  1910517

HOME AFFAIRS REFERENCE(S):          BCC2017/98896

MEMBER:Penelope Hunter

DATE:12 October 2022

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 12 October 2022 at 3:20pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook– applicant failed to provide the requested information – nominator withdrew their nomination review application – nomination application associated with the position was not approved –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 9 January 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 Cook. The second named applicant is her partner and has sought to satisfy the secondary visa criteria.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the associated nomination lodged by the applicant’s nominating employer, SHRIYAA Pty Ltd had been refused.

6. On 7 September 2022,  the Tribunal wrote to the applicants and invited them to attend a hearing by telephone, to give evidence and present arguments.

7. On 9 September 2022, the Tribunal received a request from the representative of the applicant to reschedule the hearing as the applicants had holidays planned, and they wished to enjoy their vacation.

8. On 12 September 2022, the Tribunal wrote to the applicants and advised that the hearing had been rescheduled to 4 October 2022.

9. On, 12 September 2022 the Tribunal wrote again the applicants pursuant to the provisions of s 359A of the Act inviting the applicants to provide comment on information that it considered would be a reason or a part of the reason for affirming the decision under review in writing. The relevant information was that on 11 April 2022, the Tribunal had approved the request by the nominating employer of the applicant, SHRIYAA Pty Ltd to withdraw their application for review. The Tribunal explained the relevance of the information and informed the applicants if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirement of cl 187.233(3) of the Regulations, and the secondary applicant may not be able to meet the criteria in cl 187.311(a) of the Regulations and they would be reasons for the decisions under review to be affirmed. The invitation further advised the applicants that, if their comments were not provided in writing by 26 September 2022, the Tribunal may make a decision on review without taking further steps to obtain the comments and the applicants would lose any entitlement that they might otherwise have had under the Act to appear before the Tribunal and give evidence and present arguments.  

10. The Tribunal did not receive a response to the invitation within the time provided and there was no request for an extension of time, in these circumstances s 359C of the Act applies. This allows the Tribunal to make a decision on the review without taking any further action to obtain the information. Furthermore, s 360(3) of the Act operates to remove the entitlement of the applicants to appear before the Tribunal. If a review applicant has no entitlement to a hearing, pursuant to s 363A of the Act, the Tribunal also has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

11. On 27 September 2022, the Tribunal wrote the applicants and advised that because they had not provided a response to the Tribunal invitation within the nominated time, they had lost their entitlement to appear before the Tribunal at hearing. However, the Tribunal exercised its discretion and invited the applicants to provide any further material which they wished for the Tribunal to consider on or before 4 October 2022. On 27 September 2022, an automated reply was received from the representative of the applicant that he was out of office, and would reply in 1 to 3 days.

12. No further communication or correspondence has been received from the applicants. In the circumstances, the Tribunal considers the applicants have had sufficient time to address the central issues arising from the review application, which have remained unchanged since the delegate’s decision of 15 April 2019. Accordingly, the Tribunal has determined not to adjourn the matter further and proceed to a determination.

13. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the relevant nomination associated with the applicant’s visa application has been approved.

    Nomination of a position

15. 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.

16. 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.

17. The applicant applied for the visa on the basis of a nomination in the position of Cook by SHRIYAA Pty Ltd. As set out in the delegate’s decision record, submitted by the applicants to the Tribunal, this nomination was refused by the Department on 13 March 2019.

18. SHRIYAA Pty Ltd had applied to the Tribunal for a review of the Department’s decision to refuse the nomination. On 11 April 2022, the Tribunal accepted a request from SHRIYAA Pty Ltd to withdraw this review application. This means that the delegate’s decision has not changed and the Tribunal finds that the relevant nomination for the applicant has not been approved. The applicants have presented no information or material to dispute this.

19. It therefore follows that the applicant does not meet cl. 187.233(3) and cl 187.233 of Schedule 2 to the Regulations has not been met as a whole.

20. 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.

21. The second named applicant has applied for the visa as a member of the family unit of a person who satisfies the primary criteria. As the Tribunal has found that the applicant does not satisfy one of the primary criteria it follows that the second named applicant does not meet the secondary criteria for the visa. There is no evidence that the second named applicant would otherwise meet the primary criteria.

    decision

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

    Penelope Hunter
    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.