Kaur (Migration)

[2019] AATA 6142

Kaur (Migration) [2019] AATA 6142 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amarjeet Kaur
Mr Harinder Singh
Master Avnoor Kaur Ladher

CASE NUMBER:  1715094

HOME AFFAIRS REFERENCE(S):           BCC2017/1998209

MEMBER:Nicola Findson

DATE:16 October 2019

PLACE OF DECISION:  Perth

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

Statement made on 16 October 2019 at 12:59pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – sponsoring employer’s position nomination refused – application for review of refusal withdrawn – request to adjourn review to allow applicant to find another sponsoring employer – new employer’s position nomination would not satisfy requirements for current application – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 1, cl 1114C(3)(d), Schedule 2, cl 187.233(1)(b), (3), 187.311

Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASES

Huo v MIMA [2002] FCA 617

Manna v MIMC [2012] FMCA 28

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 and Border Protection 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 6 June 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 for Dynamic Education Group Pty Ltd in the nominated position of Vocational Education Teacher (ANZSCO 242211).

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

6. On 15 August 2019, the Tribunal wrote to the applicants via their registered migration agent, pursuant to s.359A of the Act, and invited them to comment or respond to the following information: 

   On 23 June 2017, the Tribunal received an application for review of the decision of the Department of Immigration and Border Protection to refuse a nomination in respect of Dynamic Education Group Pty Ltd. On 9 August 2019, Dynamic Education Group Pty Ltd withdrew its review application. Consequently, the decision made by the Department of Immigration and Border Protection on 6 June 2017, to refuse the nomination, stands.

   The letter indicated that the above information was relevant because the Tribunal may find that the applicant did not meet the requirements of cl.187.233(3), which requires there to be an approved nomination in relation to the applicant.  It also indicated the information was relevant because cl.187.311 requires the secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 187 visa on the basis of satisfying the primary criteria for the grant of the visa. 

7. By way of response to the Tribunal’s letter, on 29 August 2019, the applicants’ representative wrote to the Tribunal and indicated that although the applicants had been advised that their review application could not succeed, they nevertheless wished to proceed with the review.

8. The applicant appeared before the Tribunal on 7 October 2019, to give evidence and present arguments. The applicants’ registered migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

11. 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.

12. 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.

13. The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review.  It records that the nomination application of which the applicant was the subject, lodged by Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology, was refused on 6 June 2017.  Accordingly, the delegate found that the nomination was not approved and cl.187.233(3) was not met.

14. At the hearing the Tribunal explained to the applicant the requirements of cl.187.233. The Tribunal also reiterated to the applicant the contents of the s.359A letter sent to the applicants on 15 August 2019.  Specifically, that the applicants’ visas were refused by the Department on 6 July 2017, because the related nomination application lodged by Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology in relation to the applicant’s position was not approved; and although Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology did seek review of this nomination refusal, it decided to withdraw its review application on 9 August 2019.   The Tribunal explained that this meant that the applicant was not the subject of an approved nomination, as required by cl.187.233(1). The Tribunal explained to the applicant that if it found she was not the subject of an approved nomination it would have to, by law, affirm the delegate’s decision.  The applicant indicated she understood these requirements.  She told the Tribunal she had not worked  for Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology for over two years.  She also urged the Tribunal to delay making a decision on her case for a period of 60 days, while she tried to find another employer who was willing to sponsor her.

15. The Tribunal discussed with the applicant that cl.187.233(1)(b) requires that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made.  It explained that this requirement is not able to be satisfied by a later nomination of a position made by a different employer.  The Tribunal explained that given the decision not to approve the nomination lodged by Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology in relation to the applicant had been refused by the Department, and the nominating employer had withdrawn their review application in respect of the refused nomination, it seems the legal requirements cannot be met by the applicant and it is likely the Tribunal would affirm the decision under review. 

16. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, providing a mechanism for review that : is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975.  In this case, the Tribunal considered whether it should adjourn the review to allow the applicant additional time to find another sponsor.  There is no obligation on the Tribunal to delay its decision making, merely because an applicant wishes to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet relevant statutory criterion:  Huo v MIMA [2002] FCA 617; Manna v MIMC [2012] FMCA 28. In this regard, the Tribunal considered: whether, in the circumstances of this case, evidence that the applicant meets cl.187.233 is likely to be forthcoming; whether she has had a fair opportunity to provide the relevant information; and, the significance of the information to her and the secondary applicants.

17. In its acknowledgment letter of 13 July 2017, the Tribunal invited the applicants to provide material or written arguments in support of their review application.  Further, in its written invitation of 10 September 2019 to attend the hearing, the Tribunal noted it had been unable to make a favourable decision on material before it and invited the applicants to provide any additional documents or information they wished to rely on during the hearing.  It is clear to the Tribunal, that based on the evidence before it, it is unlikely the applicant will be able to provide evidence that she is the subject of an approved business nomination, as required by cl.187.233(1).  The Tribunal does not consider it appropriate, in the circumstances of this case, to postpone making its decision.

18. On the basis of the evidence before it, the Tribunal finds that at the time the applicant lodged her visa application on 6 June 2017, she was the subject of a nomination application by Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology for the position of Vocational Education Teacher.  The Tribunal further finds that the nomination application by Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology was refused by the Department on 6 June 2017, and although Dynamic Education Group Pty Ltd t/a Keystone College of Business and Technology lodged a review application in respect of the refused nomination, it withdrew its application on 9 August 2019. 

19. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved. Given this, the Tribunal finds that the requirements of cl.187.233 are not met.

20. 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

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

    Nicola Findson
    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.