Kaur (Migration)

[2020] AATA 4216

Kaur (Migration) [2020] AATA 4216 (4 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Simranjeet Kaur
Mr Hardial Singh
Master Jasraj Singh

CASE NUMBER:  1811164

HOME AFFAIRS REFERENCE(S):          BCC2017/1673225

MEMBER:Stavros Georgiadis

DATE:4 August 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 4 August 2020 at 2:16pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19; Schedule 2, cls 187.233, 187.311

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 (the Act).

2. The applicants applied for the visas on 10 May 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 (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 ANZSCO (351411).

5. The delegate refused to grant the visas on 4 April 2018 because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as there was no approved nomination for the position in relation to the applicant: cl.187.233(3). The applicant provided a copy of the delegate’s decision to the Tribunal under cover email of 19 April 2018.

6. The applicants were invited to appear before the Tribunal on 3 July 2020 to give evidence and present arguments. On 26 June 2020 the applicants’ representative wrote to the Tribunal setting out as follows:

   … “We have just today been instructed by Mrs Simranjeet Kaur to advise the Tribunal that she does not intend to attend and participate in the AAT hearing, and consents for the Tribunal to make a decision on the papers without taking any further steps to allow her to appear at a hearing. …”

7. Accordingly, the Tribunal made its decision on the papers. The applicants were represented in relation to the review by their registered migration agent.

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 this case is whether the primary visa applicant meets the criteria for grant of the (Class RN) Subclass 187 visa for approval of the applications in respect of all visa applicants.

   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 r.1.13A and r.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. The Tribunal notes that the required declaration has been made in relation to the position nominated by the employer sponsor, being that of Cook (ANZSCO 351411) for the purposes of cl.187.233(1).

13. The Tribunal is satisfied that the person who will employ the applicant is the nominator in the application for approval of the nomination, Bulca Family Trust & Nakhwa Family Trust for the purposes of cl.187.233(2).

14. On 10 July 2020 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19(4) in the related AAT case-file number 1808427 for the reasons set out in the Decision Record of that date refusing the nomination.

15. On 15 July 2020 the Tribunal wrote to the applicants under s.359A of the Act inviting comment or response to adverse information as follows:

    … “In conducting the review, we are required by the Migration Act 1958 to invite you to

    comment on or respond to certain information which we consider would, subject to
    your comments or response, be the reason, or a part of the reason, for affirming the
    decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    The application for approval of the nominated position made by Bulca Family Trust
    & Nakhwa Family Trust (the nominator) was refused by a delegate of the Minister
    for Immigration. The nominator sought a review of that decision but it was recently
    affirmed by the AAT. This means that the nominator’s application for the nominated
    position has not been approved.

    This information is relevant to the review because it is a requirement for the grant of
    the visa that the position specified in your visa application is the subject of an
    approved nomination.

    If we rely on this information in making our decision, we may find that the position
    specified in your visa application is not the subject of an approved nomination. This
    would mean that you do not satisfy a requirement for the grant of the visa and that we
    must affirm the decision that is under review.
    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 29 July 2020. …”

16. The applicant did not respond to the invitation to comment on or respond to the adverse information regarding refusal of the nomination of the position.

17. As aforementioned, on 10 July 2020 the Tribunal affirmed the decision to refuse the nomination of the position relating to the primary applicant.

18. Having considered the available evidence before it, the Tribunal is satisfied that the nominated position is the subject of the relevant r.5.19 nomination application that seeks to meet the requirements of subparagraph 5.19(4)(h)(ii) relating to that position. The Tribunal has no evidence before it that the nomination is approved to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.   

19. Therefore, cl.187.233  is not 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 in respect of all applicants claimed as members of the same family unit as the primary applicant in the combined application: cl.187.311.

    DECISION

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

    Stavros Georgiadis
    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.