Kaur (Migration)

[2021] AATA 539

Kaur (Migration) [2021] AATA 539 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pavittar Kaur
Mr Harjit Singh
Miss Jasmine Bains
Miss Hasneet Bains

CASE NUMBER:  1830505

HOME AFFAIRS REFERENCE(S):          BCC2017/155957

MEMBER:Jennifer Cripps Watts

DATE:1 March 2021

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 1 March 2021 at 2:20pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – related nomination application refused and application for review withdrawn – no additional evidence provided or appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 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 (the delegate) 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 12 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 Hairdresser, as declared in the visa application. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination relating to the visa application was not approved.

5. On 12 February 2021, the applicants were invited to attend a hearing scheduled on 12 March 2021.  A response was received from their newly appointed migration agent, Mr Hunt, on 17 February 2021.  Mr Hunt confirmed receipt of the invitation and informed the Tribunal that he had been instructed that the applicant had elected not to attend the hearing or provide any additional evidence on the basis that the employer who had made the related nomination application had their nomination refused, applied to the Tribunal for review of the decision and had subsequently withdrawn their review application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant has a nomination that has been approved, relating to the Subclass 187 visa application that is the subject of this review.

   Nomination of a position

8. 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.  As the visa application was made in January 2017, it is not applicable in this matter.

9. In addition, this criterion also requires, among other things, 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

10. On 12 January 2017, Jimmy and Sons Pty Ltd nominated the applicant for the position of Hairdresser relating to her Subclass 187 visa application.  When the nomination was refused on 13 September 2018, shortly afterwards they lodged a review application with the Tribunal.  On 17 June 2020, following the nominator’s written advice that they wished to withdraw the review application, the withdrawal was accepted (by a different Tribunal member).  On 18 June 2020 Jimmy and Sons Pty Ltd was notified in writing that the withdrawal had been accepted and that the Tribunal no longer had jurisdiction to review the matter.

11. It is acknowledged that on 17 February 2021 Mr Hunt informed the Tribunal that the applicant was aware that the nominating company was not proceeding with their review.  A s.359A letter had already been drafted by the Tribunal and sent to the applicant, and had crossed Mr Hunt’s correspondence.  The Tribunal’s letter, dated 17 February 2021, set out adverse information, which was that the withdrawal of the Jimmy and Sons Pty Ltd review application meant that there was not the required approved nomination for the position relating to the applicant’s  Subclass 187 visa application and that this would be a reason or a part of the reason for affirming the decision on review. 

12. Referring to the applicant’s advice that Jimmy and Sons Pty Ltd were not proceeding with their review,  for the refusal of the related nomination, and on the basis that the Tribunal has confirmed this to be the case by referring to Department records, the Tribunal is satisfied that the applicant is not the subject of the relevant approved nomination.  The applicant does not therefore meet cl.187.233(2).

13. For the reasons given, the applicant does not meet cl.187.233 of Schedule 2 to the Regulations.

14. 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.

    Secondary applicants

15. As the Tribunal has affirmed the decision to refuse the applicant’s visa, the secondary applicants do not meet the secondary criteria and, for this reason, the decision to refuse the visas of the secondary applicants is also affirmed.

    Ministerial Intervention

16. The applicant’s migration agent informed the Tribunal that the applicant intends to petition the Minister once a decision is made by the Tribunal.  A referral to the Minister by the Tribunal was not requested.

    DECISION

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

    Jennifer Cripps Watts
    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.