Kaur (Migration)

Kaur (Migration) [2020] AATA 3068 (23 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Harpreet Kaur
Mr Amritpal Singh
Master Jaytegh Singh
CASE NUMBER:  1804889
HOME AFFAIRS REFERENCE(S):         BCC2017/170599
MEMBER:Peter Emmerton
DATE:23 July 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 23 July 2020 at 11:06am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related nomination refused – refusal affirmed on review – COVID-19 travel restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (h)(ii), Schedule 2, cl 187.233 (3)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 13 January 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the first named applicant (the applicant) is seeking the visa in theDirect Entry stream, to work in the nominated position of Retail Manager (General), ANZSCO 142111.
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 was not approved.
The applicant appeared before the Tribunal via telephone on 23 July 2020 to give evidence and present arguments.
The Tribunal found the evidence given by Ms Kaur to be credible and she appeared to answer questions in an open and honest manner without obfuscation.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was not represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the nomination has been approved.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
On 25 November 2016, the applicant’s sponsoring employer, I K International Pty Ltd applied for approval for a nomination for the position of Retail Manager (General), ANZSCO 142111. Ms Harpreet Kaur is the nominee for the position. On 19 December 2017 the Department refused the application. In a separate decision, the Department refused Ms Harpreet Kaur’s subclass 187 visa application because I K International Pty Ltd’s nomination was not approved.
I K International Pty Ltd and Ms Harpreet Kaur applied to the Tribunal to review the Department’s decisions.
On 24 April 2020, the Tribunal affirmed the decision under review to refuse I K International Pty Ltd’s nomination for the position of Retail Manager (General), (ANZSCO 142111).[1]
[1] 1804889
On 15 June 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised the following.
‘INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS HARPREET
KAUR, MR AMRITPAL SINGH AND MASTER JAYTEGH SINGH
I am writing in relation to the applications for review made by you in respect of
decisions to refuse to grant a Regional Employer Nomination (Permanent) visas.
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 application for approval of the nominated position made by I K International Pty Ltd (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 June 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 29 June 2020, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 29 June 2020 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
Consequences of not responding
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’
The applicant responded to the Tribunal on 29 June 2020 requesting an extension of time to respond to the 359(A) invitation. The Tribunal granted an extension until 6 July and advised no further extension would be offered. The applicant responded within the stipulated period of time.
The applicant’s response is set out below.
‘Respected Member,
I am the main applicant of the visa (Subclass 187) Direct Entry Stream. I am also writing on behalf of two secondary applicants Mr. Amritpal Singh (my husband) and Master Jaytegh Singh (our son).
We applied for Subclass 187 on 13/01/2017 in which nominating company was I K International Pty Ltd. The nomination application was refused and subsequently, the visa application was also refused. I was given an option to withdraw the application but I was suggested not to withdraw the application. I couldn’t understand the consequences at that time and now I am regretting that I should have withdrawn the application. The nominating company was given a chance to comment at AAT review but I believe that they didn’t respond. The following are our comments in relation to the review of our application for Subclass 187 refusal.
I have completed Bachelor of Business (Accounting) from the Australian Institute of Business and Management, Sydney. With this qualification I was successful to get a job of Retail Manager at IGA, Bowraville, NSW. I started working at this job in June 2016, I was working full-time and I was a holder of Temporary Graduate Visa at that time. I was very honest and hardworking worker for my company, my company didn’t want to lose me so they decided to nominate me for the position of Retail Manager for Subclass 187.
The application for nomination and visa was lodged while I was working there. All of the required documents were attached and I was very optimistic about the approval of the nomination and visa. Unfortunately, the nomination and visa application were refused. When the nomination was refused then I was sure that the visa application will be refused too. As I was very dedicated and hardworking, another company contacted me and they were ready to nominate me for the retail manager. The new company could have nominated me if I would have withdrawn my visa application before visa refusal.
I arrived in 2008 in Australia and I have spent almost 12 years in this country which is a significant amount of time. I never had any issue with Australian law and enforcement, I am always a law-abiding a non-citizen of Australia so my husband is. I love this country and the people of Australia. I urge the honourable member to give me a chance to provide a new nomination if possible. I will try to get a new nomination so that I can save my visa. I am not sure if it is possible or not but I am requesting.
At the moment, we cannot travel to our home country because of COVID-19. There are no flights and there is no hope for the flights to be started soon. Cases of COVID-19 in India are rising at a very high pace and it’s not safe to travel to India at the moment with my family. I understand that I cannot apply for any other visa while I am onshore that’s why I am seeking an option to provide another nomination if AAT allows me to.
To sum up, it is a very important decision for me and my family’s life. I want to live in Australia at least until the epidemic is over in the world. I request the honourable member of the Administrative Appeals Tribunal to consider my request. I shall be very thankful to you.’
The Tribunal also received this statement from the visa applicant’s authorised representative within the same stipulated time period.
‘I refer to the above review application. I am instructed to advise that the review applicants have no further comments in relation to the AAT decision to affirm the nomination refusal, as the nomination matter is beyond their control. However, because of the current international lockdown and travel ban, the applicants are unable to return to their home country, India. For this reason, I am instructed to request the tribunal not to make a negative decision until the travel ban is lifted.’
The Tribunal notes that the statement quoted in paragraph 20 was received electronically at 3.20 pm, 6 July 2020, which was after the Tribunal received a completed Withdrawal of an authorised recipient Form 956A, withdrawing the appointment of the applicant’s representative who sent the statement referred to in paragraph 20. The withdrawal form 956A was received by the Tribunal at 3-53am, 6 July 2020. The Tribunal has formed a view that as a result of the preceding withdrawal made by the applicant, the representative was no longer speaking on behalf of the applicant at the time of making the statement in paragraph 20. Therefore, it has disregarded the fore mentioned statement although it notes that it mirrors the request made by the visa applicant which has been considered by the Tribunal.
The Tribunal considered the request made in the applicant’s letter and whilst the Tribunal has some sympathy for the circumstances in which the visa applicant has been placed, it also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. It decided to proceed with the hearing. In addition, the Tribunal is cognisant that the Australian Government has committed to adjust its’ procedures in order to accommodate the practical circumstances faced by visa holders in relation to restricted travel during the current Covid 19 pandemic and applicant’s inability to travel from Australia. The hearing was subsequently scheduled for 23 July 2020.
Nomination of a position
For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).
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.
The Tribunal confirmed with the applicant at the hearing that they were no longer being represented by a registered migration agent. They asserted that this was correct.
The Tribunal asked the applicant if they had an approved nomination associated with their visa application. They replied in the negative. They went on to state that they wanted to attempt to obtain another nominator and requested additional time before the Tribunal made its’ decision. The Tribunal stated that such a delay would not be possible.
There is no evidence before the Tribunal that an approved nomination associated with this Regional Employer Nomination (Permanent) (Class RN) visa application has been granted.
The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).
Therefore, cl.187.233 is not met.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant’s Regional Employer Nomination (Permanent) (Class RN) visa.
Peter Emmerton
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.

[2020] AATA 3068

23 July 2020

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Natural Justice

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