Kaur (Migration)

Kaur (Migration) [2020] AATA 2384 (25 June 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Satvir Kaur
Mr Gurneet Singh Jawanda
Mr Gurminder Singh
CASE NUMBER:  1807865
DIBP REFERENCE(S):  BCC2016/1772237
MEMBER:Peter Emmerton
DATE OF DECISION:  25 June 2020
DATE CORRIGENDUM
SIGNED:25 June 2020
PLACE OF DECISION:  Adelaide
AMENDMENT:  The following corrections are made to the decision:

The date ‘2 July 2020’ in the date field on page 1 of the Decision Record should be replaced with ’25 June 2020’.
Peter Emmerton
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Satvir Kaur
Mr Gurneet Singh Jawanda
Mr Gurminder Singh
CASE NUMBER:  1807865
HOME AFFAIRS REFERENCE(S):          BCC2016/1772237
MEMBER:Peter Emmerton
DATE:2 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 25 June 2020 at 12:37pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – request for postponement declined – restricted travel during COVID-19 pandemic – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
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 18 May 2016. 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 the Direct 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 did not appear before the Tribunal on 2 July 2020 to give evidence and present arguments as was originally scheduled, as they waived their right to a hearing, prior to the hearing. The Tribunal received the following letter from the registered migration agent on behalf of the applicant dated 23 June 2020.
‘Dear Sir/Madam,
RE: 1807865 - Mrs Satvir Kaur - SA –
I write on behalf of the appointed representative in relation to the request for Hearing. Please note that the applicant wishes to waive her right to a Hearing as she is conscious about wasting the time of the AAT. The applicant is working in healthcare and she is pursuing another visa based on her Nursing qualifications and work experience.
She understands that a decision on this matter will be affirmed and asks that where possible the AAT delay in making a decision on this matter.’
The applicant was 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 16 May 2016, the applicant’s sponsoring employer, Disha Matharu A/T for the ND2 Family Trust applied for approval for a nomination for the position of Retail Manager (General), ANZSCO 142111. Ms Satvir Kaur is the nominee for the position. On 9 February 2018 the Department refused the application. In a separate decision, the Department refused Ms Satvir Kaur’s subclass 187 visa application because Disha Matharu A/T for the ND2 Family Trust’s nomination was not approved.
Disha Matharu A/T for the ND2 Family Trust and Ms Satvir Kaur applied to the Tribunal to review the Department’s decisions.
On 28 February 2020, the Tribunal affirmed the decision under review to refuse Disha Matharu A/T for the ND2 Family Trust’s nomination for the position of Retail Manager (General), (ANZSCO 142111).[1]
[1] 1804995
On 1 June 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised the following.
‘Dear Mrs Kaur, Mr Singh and Mr Jawanda
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MRS SATVIR
KAUR, MR GURMINDER SINGH AND MR GURNEET SINGH JAWANDA
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 Disha Matharu A/T For the ND2 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 15 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 15 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 15 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 letter via their registered migration agent on 15 June 2020 requesting an unspecified period of postponement of the decision.
‘RE: 1807865 - Mrs Satvir Kaur - SA –
I write on behalf of the appointed migration agent in relation to the application referenced above and further to your email below.
I write to request a postponement of the decision relevant to this matter. I have been advised that the review applicant has been working as a Carer and has received her registration from ANMAC as a Nurse. She is eligible for a Skilled visa however due to the current pandemic and this visa refusal under review, she is unable to depart Australia to lodge a fresh application offshore. A decision on this case would see the applicant lodge an application to the FCC to maintain her work in Australia at the request of her employer until it is safe for her to depart.
Given her current role in this time of need, it is preferred if the applicant can remain in Australia so she can continue her work and contribution to the community.
I appreciate your consideration with this.’
The Tribunal considered this request and whilst the Tribunal has some sympathy for the circumstances in which the visa applicant has been placed, it decided to proceed with the hearing as it is aware 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 scheduled for 2 July 2020.
The Tribunal also noted at that time that the Skilled visa issue referred to in the letter contained in paragraph 16 of this decision was not related to the current 187 visa which was the only matter under review. The Tribunal observes that the original visa application was made in excess of 4 years ago and the visa applicant has been in Australia on a range of Student and Bridging Visas since the original visa grant date of 11 June 2009.
As previously stated in paragraph 6, the Tribunal then received a letter in which the applicant waived their right to a hearing. It was respectfully acknowledged by the applicant that the AAT’s time should not be wasted and that they understood the matter would be affirmed. As per the applicants request the matter has been decided upon the evidence currently before the Tribunal.
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.
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 2384

25 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction