Kaur (Migration)

[2021] AATA 1959

Kaur (Migration) [2021] AATA 1959 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sukhpreet Kaur
Mr Dinesh Kumar
Miss Harnoor Bajwa

CASE NUMBER:  1806701

HOME AFFAIRS REFERENCE(S):          BCC2016/3135499

MEMBER:Danielle Galvin

DATE:10 May 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 10 May 2021 at 3:06pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Hotel or Motel Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13; 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 on 12 March 2018 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 21 September 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The application

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, Ms Sukhpreet Kaur, (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Hotel or Motel Manager for the nominator GHK FOOD & BEVERAGE PTY LTD (the nominator).

5. The nominator’s application for approval of the nomination had been refused by the Department on 2 February 2018, a decision that was affirmed by the Tribunal on 13 October 2020.

6. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because there was no approved nomination in place. The consequence for the secondary visa applicants, Mr Dinesh Kumar and Miss Harnoor Bajwa, was that they were not members of a family unit where the primary applicant has an approved nomination in place to satisfy the requirements of the visa and did not therefore qualify for the visa.

7. On 3 December 2020 the Tribunal wrote to the applicant’s migration agent named in the review application, inviting the applicants to comment on and respond to this information. A response in writing was required by 17 December 2020.

8. On 17 December 2020 the applicants responded stating that the applicant had no experience when she applied for the nominated position but had experience in aged care. It was confirmed that the applicant is working for another employer.

9. On 17 December 2020 the agent for the applicant wrote to the Tribunal and sought an extension of time in which to respond to the invitation. The agent stated that the applicant is working in aged care and her new employer wishes to take over sponsorship. The length of time for an extension was not stated. In these circumstances the Tribunal decided not to grant the requested extension and list the matter for hearing.

10. The Tribunal listed the hearing to be heard by telephone due to the effects of the COVID-19 pandemic. No objection was made to this method of hearing and the hearing proceeded accordingly.

11. The applicants, Ms Kaur and Mr Kumar, appeared before the Tribunal on 23 February 2021 to give evidence and present arguments. They stated that through no fault of their own the nominator ceased to operate and that they have been working in healthcare. They stated that they had not secured an alternative sponsor as they would need to study to secure one. They wished for time in which to seek further advice. The Tribunal allowed them until 16 March 2021 in which to make further submissions to the Tribunal.

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

13. On 12 March 2021 the applicants’ agent sent the following documents to the Tribunal:

    ·Passport extract of Dinesh Kumar;

    ·Employment contract for Dinesh Kumar.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the requisite criteria for the grant of the visa.

    Nomination of a position

16. 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.

17. 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.

18. There is no evidence before the Tribunal that the nomination was approved and therefore the requirements of cl.187.233(3) have not been met. Further, the evidence provided was that the applicant is not working for the sponsor and so there was no information provided that the position is still available to the applicant. Therefore, the requisite criteria of cl.187.233(2) and cl.187.233(5) have not been met.

19. Therefore, the requirements of cl.187.233 have not been met.

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 secondary applicants have made no claims in relation to the primary criteria to be met. Given that the applicant has failed to meet the primary criteria, the secondary applicants fail to meet the secondary criteria as they are not members of the family unit of the holder of a visa.

    DECISION

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

    Danielle Galvin
    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.