Kaur (Migration)

[2020] AATA 384

Kaur (Migration) [2020] AATA 384 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Baljit Kaur
Mr Rupinderpal Singh
Master Ravneet Kaur

CASE NUMBER:  1818781

HOME AFFAIRS REFERENCE(S):          BCC2016/1725975

MEMBER:Mr S Norman

DATE:18 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2020 at 11:40am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s position nomination refused – refusal affirmed on review – pending appeal to Federal Court not a sufficient reason to delay tribunal’s decision – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 13 May 2016. 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. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

5. The applicants appeared before the Tribunal on 21 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the Director of Annilax Enterprises Pty Ltd (Mr Anand GOPINATH). The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. Clause 187.233 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

8. In addition, this criterion also requires that:

   ·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 located in regional Australia (as defined in r.5.19) 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.

9. On 17 May 2018, the nomination application lodged by the applicant’s nominator, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister. On 18 May 2018, the Department invited the applicant to comment about this within a prescribed period. On 15 June 2018, a response was received which requested the matter be finalised and merits review would be sought with the Tribunal. Based on the evidence before them, the delegate was not satisfied the applicant met cl.187.233(3); or cl.187.233.

10. Next, the delegate considered the applicant’s claims under the Temporary Residence Transition Stream. Under cl.187.223(1), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of was not assessed under r.5.19(3), the applicant did not meet cl.187.223. Next, the delegate considered the application of the Agreement Stream. However, as the correlating position was not nominated by an employer in accordance with a Labour agreement, the applicant did not meet cl.187.242. Next, the delegate considered cl.187.311 (member of the family unit). However, as no applicant met the primary criteria for the visa, none was entitled to the visa based on being a member of the family unit of a person who had. As the applicant did not meet relevant criteria, the delegate refused to grant the applicant the Regional Sponsored Migration Scheme (Subclass 187) visa.

11. By s.359A letter of 3 February 2020 (emailed to the authorised recipient), the applicant was advised that on 31 January 2020, the Tribunal affirmed the decision to refuse the nomination of the applicant’s nominator (Annilax Enterprises Pty Ltd). The applicant was advised this information was relevant because cl.187.233(3) required the nomination made in relation to them by their nominating employer be approved. The applicant was advised that if the Tribunal relied on this information it may find that the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The applicant was then invited to comment in writing by 17 February 2020.

12. By email of 17 February 2020, the applicant’s agent advised the Tribunal:

    The visa applicant admits that on 31 January 2020 the Tribunal affirmed the Department's decision not to approve the nomination in relation to [them] …
    The client expressed [their] dissatisfaction over the decision made by the Tribunal on 31 Jan 2020 and it has been decided to lodge an appeal in the Federal Court of Australia.

    The visa applicant requests to keep the decision on visa application pending till the finalization of appeal on business nomination by Federal Court of Australia.

13. The Tribunal acknowledged the request but based on the information provided, I was not satisfied there were sufficiently material reason/s for delaying making a decision in this case.

14. That being said, and based on the evidence before the Tribunal, I am satisfied the applicant had not met cl.187.233(3); and that cl.187.233 is not met.

15. The Tribunal considered cl.187.311 (member of the family unit). However, as no applicant met the primary criteria for the visa, none was entitled to the visa based on being a member of the family unit of a person who had.

16. 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 other streams have not been met, the decision under review must be affirmed.

    DECISION

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

    Mr S Norman
    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