Kaur (Migration)

[2020] AATA 2751

Kaur (Migration) [2020] AATA 2751 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajbir Kaur
Mr Navjot Singh Na
Mr Gurnoor Shergill

CASE NUMBER:  1903444

HOME AFFAIRS REFERENCE(S):          BCC2017/3345460

MEMBER:Cathrine Burnett-Wake

DATE:27 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2020 at 12:59pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – related position nomination refused – member of family unit – child applicant has been granted Australian citizenship – parent applicants’ employment and community activity – referred to department for consideration by minister – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cll 187.233(3), 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 14 September 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 Direct Entry stream, to work in the nominated position of Accommodation and Hospitality Managers nec, with Aayushman Pty Ltd trading as Devilsh2o.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because there was no approved nomination.

6. The applicants appeared before the Tribunal on 3 March 2020 to give evidence and present arguments.

7. The applicants were represented in relation to the review; however, the representative did not attend the hearing.

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 the present case is whether there is an approved nomination.

   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. At hearing the applicant conceded that the application had been refused by the Department.

13. The Tribunal, pursuant to s.359AA, of the Act provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

14. The particulars of the information were that the Tribunal was aware that the nomination application was refused by the Department.

15. It was explained to the applicant that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination. The Tribunal asked the applicant if she required additional time to comment on the information. The applicant stated she did not require additional time and wished to proceed with the hearing.

16. The facts are not under dispute, and both parties agree that there is no approved nomination.

17. 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.

18. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant a subclass 187 visa to the second and third named applicants as they do not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they can meet the primary criteria in their own right.

19. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

20. The applicant explained to the Tribunal that her son, Gurnoor Shergill, who was born in November 2009, acquired Australian citizenship on 18 November 2019 as he was born in Australia and had spent 10-years of his life here. The applicant provided a copy of her son’s Australian citizenship certificate to the Tribunal.

21. The applicant gave evidence to the Tribunal that she was currently working as an enrolled nurse at the Sunshine City Medical Centre.

22. Following the hearing the applicant provided a significant volume of information to support her request, which the Tribunal has considered.

23. Having considered the supporting information the Tribunal is of the view that the applicant’s circumstances warrant a referral to the Minister. The applicant has an Australian citizen child and has provided supporting evidence including school records and other supporting information relating to the extracurricular activities the child participates in, which demonstrate he is thriving and settled in the Australian community.

24. The applicant is in gainful full-time employment as an enrolled nurse. The applicant’s employer has provided a letter of support which details the integral role she plays in their clinic and the impact they would face if she was forced to depart Australia.

25. The secondary applicant’s employer has also provided a letter of support, which details he has been in employment with them for over 10-years and is a key staff member and they would be disadvantaged if he were forced to depart Australia.

26. Additionally, the applicant has provided numerous letters of support from Australian citizens and permanent residents which highlight their contribution to the general community. The secretary of the Temple the applicant’s attend also provided a letter of support which details that they are active and engaged members of the Sikh community and regularly volunteer.

27. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Cathrine Burnett-Wake
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.