Kaur (Migration)

[2023] AATA 3849

Kaur (Migration) [2023] AATA 3849 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Daljit Kaur

REPRESENTATIVE:  Mr Manoj Kumar Nanda (MARN: 1568823)

CASE NUMBER:  2314043

HOME AFFAIRS REFERENCE(S):          BCC2023/690492

MEMBER:Andrew McLean Williams

DATE:6 November 2023

PLACE OF DECISION:  Brisbane

DECISION:The decision under review is affirmed.

Statement made on 06 November 2023 at 12:32pm

CATCHWORDS
MIGRATION – Skilled Employer Sponsored Regional (Provisional) (Class PE) visa – Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 494.213

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 21 August 2023 to refuse to grant the visa applicant a Skilled Employer Sponsored Regional (Provisional) (Class PE) Subclass 494 visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The visa applicant (‘the Applicant’) applied for the visa on 6 May 2023. The Delegate refused to grant the visa on the basis that the Applicant did not satisfy the criteria in clause 494.213, which requires that the Applicant be sponsored by an employer that has obtained prior approval under s.140GB of the Act for the employment position that is to be filled by the Applicant.

3. The Applicant had been advised that their prospective sponsoring employer ‘All About You Home Care Pty Ltd’ did not have an approved nomination in place for the Applicant prior to the lodging of the visa application. In these circumstances it was not possible for the Applicant to meet the requirements of clause 494.213, and the Delegate found accordingly.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the Applicant can satisfy the requirements of clause 494.213.

6. The Applicant was previously advised by the Department that their prospective sponsoring employer ‘All About You Home Care Pty Ltd’ had not obtained an approved nomination for the Applicant. 

7. On 3 October 2023 the Tribunal wrote to the Applicant requesting further submissions regarding the absence of an approved nomination, however no response has been received by the Tribunal from the Applicant within the nominated deadline for any further submission. 

   DECISION

8. The Applicant is unable to meet the requirements of clause 494.213 on the basis of her not having an approved nominated employment position, and is thus ineligible for a Skilled Employer Sponsored Regional (Provisional) (class PE) visa. 

9. The decision under review is affirmed. 

   Andrew McLean Williams
   Member