Kaur (Migration)

[2019] AATA 6705

Kaur (Migration) [2019] AATA 6705 (18 December 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Tarandeep Kaur

Mr Harinam Singh

CASE NUMBER:  1829625

HOME AFFAIRS REFERENCE(S):          BCC2016/2860167

MEMBER:  Jennifer Cripps Watts

DATE:  18 December 2019

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 December 2019 at 5:52pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – nomination application refused – review application withdrawn – decision under review affirmed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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) 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 29 August 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 applicant is seeking the visa in Direct Entry stream to work in the nominated position of Office Manager.

5. On 5 October 2018, the delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination relating to her visa application, because the nomination application was refused.

6. On 10 October 2018 the applicant applied to the Tribunal for merits review and provided a copy of the delegate’s decision with the review application. On 25 November 2019, the Tribunal sent the applicant an invitation to attend a hearing scheduled on 18 December 2019.

7. On 2 December 2019 the applicant responded to the hearing invitation, in writing, indicating they would attend the scheduled hearing. On 4 December 2019, the applicants withdrew their migration agent’s representation, in writing.

8. The applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant’s visa was refused because she did not meet cl.187.233 because she had no nomination, it was refused on 2 August 2018.

11. The applicants, who indicated in their review application that they live in Annandale in regional Queensland, were invited to attend the Tribunal hearing by phone. When exercising the discretion to have the hearing by phone, in the circumstances of this case the Tribunal decided to hold the hearing remotely because the applicants live some distance from the Sydney registry and attending the hearing in person would involve them potentially incurring significant cost and inconvenience, the issue on the review was the same substantive issue as was before the delegate and the Tribunal was satisfied that having a phone hearing would not prejudice the applicants’ right to a fair hearing.

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1. The Tribunal has considered the same substantive issue as the delegate, whether the applicant meets cl.187.233, and is satisfied that all relevant matters have been considered in reaching its decision.

2. Subclause 187.233(1)(b) requires that:

   (1) The position to which the application relates is the position:

   ... (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.

3. Subclause 187.233(3) requires that:

   (3) The Minister has approved the nomination.

4. In the delegate’s decision, it is noted that they wrote to the applicant on 2 August 2018, informing her that on 2 August 2018, the nomination application lodged by Rizq Pty Ltd (the nominee referred to in cl.187.233(1)(b)) was refused. The applicant was invited to respond within 28 days. The Department received no response and the applicants’ visas were refused because cl.187.233(3) was not met.

5. On 29 November 2019, the Tribunal wrote to the applicant, by way of a s.359A letter, and gave the applicant particulars of information it considered would be the reason or a part of the reason for affirming the decision under review. A summary of the application for the nomination by Rizq Pty Ltd was included, as was the adverse information, which was this:

   ‘On 14 August 2018, Rizq Pty Ltd made an application to the Tribunal for review of the decision not to grant their nomination. On 10 October 2019, Rizq Pty Ltd

withdrew their review application and the Tribunal accepted the withdrawal.

On the evidence before the Tribunal, because Rizq Pty Ltd’s nomination was not approved, it appears you cannot satisfy cl.187.233(3) because you do not have an approved nomination by Rizq Pty Ltd. If you cannot satisfy cl.187.233(3), you cannot meet the primary criteria for the grant of the visa.’

1. It was explained to the applicant that even though Rizq Pty Ltd had lodged a review application, they had withdrawn the review application, on 10 October 2019. The applicant said she did not know anything about that. The Tribunal told the applicant that it was reasonable to think she knew now (at the hearing), because of the letter that had been sent to her on 29 November 2019, inviting her to comment on or respond to the adverse information relating to the nomination application.

2. The applicant was reminded that she cannot meet the criteria for the grant of the visa if she does not have a nomination and was referred to the s.359A letter above that contained information relating to the nomination requirement.

3. The applicant told the Tribunal that she expected she would be employed by Rizq Pty Ltd once her visa was approved and that it was not her fault that she did not have a nomination. The Tribunal reiterated the information given in the s.359A letter, essentially, that unless the applicant is the subject of an approved nomination she cannot meet the criteria for the grant of the Subclass 187 visa. The applicant was invited to say anything she wished to at the Tribunal hearing and is satisfied that the applicant completed giving her oral evidence before the hearing was concluded.

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1. There is no evidence before the Tribunal that the applicant is the subject of a nomination relating to her Subclass 187 visa application.

2. For these reasons, the applicant does not meet cl.187.233.

3. 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.

   Secondary applicant

4. As the Tribunal has affirmed the decision to refuse the applicant’s visa, the decision to refuse the secondary applicant’s visa must also be affirmed because he does not meet cl.187.311.

   DECISION

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

   Jennifer Cripps Watts
   Member

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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.

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