Kaur (Migration)

[2020] AATA 329

Kaur (Migration) [2020] AATA 329 (2 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mandeep Kaur
Mr Devinder Singh
Miss Ardas Kaur

CASE NUMBER:  1714554

HOME AFFAIRS REFERENCE(S):          BCC2015/2472491

MEMBER:Susan Trotter

DATE:2 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 January 2020 at 10:50am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – no jurisdiction – nominator deregistered – no approved nomination – did not respond to Tribunal’s correspondence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C(2), 360, 363
Migration Regulations 1994 (Cth), rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Immigration on 4 July 2017 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 26 August 2016.

3. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. 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.

6. In the present case, the first-named applicant is seeking a visa in the Direct Entry stream to work in the nominated position of Café or Restaurant Manager. The second-named and third-named applicants applied on the basis of each being a member of the family unit of the first-named applicant.

7. The delegate refused to grant the visas because the first-named applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations as she was not the subject of an approved nomination as required.

8. The delegate also found that the second-named and third-named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl.187.311) requiring them each to be a member of the family unit of a person who met the primary visa criteria.

9. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 7 July 2017.

10. The applicants were represented in relation to the review.

11. On 9 December 2019, the Tribunal invited the applicants to comment on or respond to certain information before it. The Tribunal’s letter stated as follows:

    I am writing in relation to the application for review made by Mrs Mandeep Kaur as primary visa applicant and Mr Devinder Singh and Miss Ardas Kaur as secondary visa applicants in respect of a decision to refuse to grant 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 decision under review.

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

    The particulars of the information are:

    ·Department of Home Affairs records indicate that on 25 August 2015, Pariyani Enterprise Pty Ltd lodged an application for approval of an employer nomination in the Direct Entry stream under subregulation 5.19(4) of the Migration Regulations 1994 (the Regulations) with the Department. This application identified the nominated person as Mrs Kaur for the position of Cafe or Restaurant Manager.

    ·On 26 August 2016, you lodged an application for Subclass 187 Regional Employer Nomination (Permanent) visas with the Department. In this application, you provided the employer nomination details for the employer application lodged by Pariyani Enterprise Pty Ltd on 25 August 2015;

    ·On 19 May 2017, the Department refused the employer nomination application lodged by Pariyani Enterprise Pty Ltd. On 5 June 2017, an application for review of this decision was lodged with the Tribunal.

    ·On 1 March 2019, the Tribunal found that it did not have jurisdiction to consider the review application as Pariyani Enterprise Pty Ltd was deregistered.

    ·There is no evidence as at the date of this letter that the nomination application lodged by Pariyani Enterprise Pty Ltd in favour of Mrs Kaur has been approved.

    This information is relevant to the review because it suggests that the primary visa applicant, Mrs Kaur, is not the subject of an approved nomination lodged by Pariyani Enterprise Pty Ltd as required by cl.187.233(3) of Schedule 2 to the Migration Regulations 1994, one of the criteria that must be satisfied for grant of the Employer Nomination (Permanent) visa. Subject to your comments or response, this would be the reason, or a part of the reason, for affirming the decision under review to refuse to grant the visa to the primary visa applicant, Mrs Kaur.

    Further, if the decision under review to refuse to grant the visa to the primary visa applicant, Mrs Kaur, is affirmed, it follows that this would be the reason, or a part of the reason, for affirming the decision under review to refuse to grant the visa to the secondary visa applicants, as cl.187.311 of Schedule 2 to the Regulations, requiring a secondary visa applicant to be a member of the family unit of another person who, having satisfied the primary criteria, is the holder of a Subclass 187, would not be met as required.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 23 December 2019. 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 23 December 2019, 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 23 December 2019 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.

    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.

12. The invitation was sent to the applicants’ nominated authorised recipient, their registered migration agent, at the address last provided in connection with the review, being the recipient’s email address as advised to the Tribunal.

13. As at the date of this decision, the Tribunal had not received any response to the 9 December 2019 invitation. The Tribunal therefore did not receive any response to its letter of 9 December 2019 within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicants failed to provide written comments or a response within the prescribed time, s.359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ comments or response.

14. Further, as s.359C(2) of the Act applies to the applicants, they lose any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: s.360(3) of the Act.

15. Although neither the applicants nor their representative has requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review.

16. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

17. Neither the applicants nor their representative provided any response or comment to the Tribunal’s invitation within the prescribed period set for this purpose, or at all.

18. The Tribunal has had regard to the fact that the visa application was refused on 4 July 2017 for the reasons stated above. The applicants provided a copy of the delegate’s decision record with the review application. The Tribunal therefore observes that the applicants have been aware for over two and a half years of the reasons for the visa application refusal.

19. The Tribunal has also taken into account the fact that the applicants have had the benefit of representation from a registered migration agent in order to assist them with this application and considers it reasonable to expect that the applicants’ representative, as a registered migration agent, has an understanding of the requirements of the legislation and the implications of the invitation the Tribunal sent to the applicants on 9 December 2019, the consequences of which were also set out in the Tribunal’s letter of 9 December 2019.

20. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issue arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that the first-named applicant meets one of the essential requirements for a Subclass 187 visa application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in the present case is whether the first-named applicant meets the requirements of cl.187.233(3).

    Nomination of a position

23. Clause 187.233, as applicable in this case, is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an approved nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application and, where the associated nomination application was made on or after 1 July 2017, it must identify the applicant in relation to the position.

24. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made the nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)   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 of the Regulations); or it is reasonable to disregard any such information;

    (d)  the position is still available to the applicant; and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

25. As noted in the Tribunal’s 9 December 2019 letter to the applicants, the evidence before the Tribunal is that the nomination application lodged by Pariyani Enterprise Pty Ltd was refused on 19 May 2017 and, on 1 March 2019, the Tribunal found that it did not have jurisdiction to consider a review application lodged by Pariyani Enterprise Pty Ltd as the entity was deregistered.

26. On the evidence before it, the Tribunal finds that there is no approved nomination and the Minister has not approved the nomination to which the first-named applicant’s visa application relates. The Tribunal is therefore not satisfied that the first-named applicant meets the requirements of cl.187.233(3) as required at the time of decision.

27. The first-named 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 to refuse to grant the first-named applicant a Subclass 187 visa must be affirmed.

28. The Tribunal must also affirm the decision not to grant the second-named and third-named applicants Subclass 187 visas as they do not meet the secondary visa criterion requiring them each to be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary visa criteria for the visa in their own right.

    DECISION

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

    Susan Trotter
    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.