Kaur (Migration)

[2021] AATA 2961

Kaur (Migration) [2021] AATA 2961 (13 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Har Simran Kaur
Mr Damanpreet Singh Sardaran Dee Moron

CASE NUMBER:  1914198

HOME AFFAIRS REFERENCE(S):          BCC2017/2340745

MEMBER:Cathrine Burnett-Wake

DATE:13 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2021 at 2:55pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – subject of approved position nomination – refusal of related nomination application affirmed on review – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65, 359A,

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 30 June 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 with S&S Hospitality Group Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations.

6. The applicants appeared before the Tribunal on 13 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicants were represented in relation to the review by their registered migration agent, however, their representative did not attend the hearing.

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 there is an approved nomination.

   Nomination of a position

10. 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.

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 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.

12. On 12 July 2021, the Tribunal, wrote to the applicants pursuant to s.359A, of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicants to comment on or respond to the information.

13. The particulars of the information were that the application for approval of the nominated position made by S&S Hospitality Group Pty Ltd was refused by a delegate of the Minister for Immigration and although merits review was sought for the nomination decision, the Tribunal recently affirmed the Department’s decision. Meaning that the nominator’s application for the nominated position has not been approved.

14. The letter explained to the applicants that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

15. On 26 July 2021, the applicant replied in response requesting the Tribunal take into consideration her personal situation, including her young children, her length of time in Australia, that she had no control over the closure of the business by her employer and the difficulty of returning to India.

16. On 13 August 2021, the applicants attended a hearing before the Tribunal. The applicant conceded that there was no nomination. However, she asked the Tribunal to consider the time she had spent in Australia, that she had not done anything wrong and had no control over the situation that led to S&S Hospitality Group Pty Ltd closing the business. The Tribunal expressed to the applicant during the hearing that it accepted that she had no control over the refusal of the nomination and that she had spent significant time in Australia. Notwithstanding this, and as it was explained to the applicant during the hearing the Tribunal has no discretion to consider the circumstances that led to the nomination being refused and subsequently affirmed by the Tribunal. Its role is solely determining whether there is an approved nomination relating to this visa application under review, which there is not.

17. Therefore, as there is no approved nomination, cl 187.233 is not met.

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 decision under review must be affirmed.

19. As the secondary applicant is a dependent upon the main applicant, their application must also be affirmed. They have not put forward claims to meet the requirements in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.