Kaur (Migration)

[2019] AATA 6198

Kaur (Migration) [2019] AATA 6198 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajwinder Kaur
Mr Prabjot Singh
Miss Anayat Kaur Deol

CASE NUMBER:  1905422

HOME AFFAIRS REFERENCE(S):          BCC2017/660062

MEMBER:Phoebe Dunn

DATE:14 October 2019

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 14 October 2019 at 1:10pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Hairdresser – no approved nomination – two previous sponsor businesses closed – current employer did not appeal nomination refusal – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.223, 187.311; r 1.13

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 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 17 February 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 ‘Hairdresser’ (ANZSCO 391111).

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 on 12 September 2018 the nomination lodged in respect of the applicant by Keval Ash Man Pty Ltd (the nominator) was refused by a delegate of the Department of Home Affairs, and as such there was no approved nomination.

6. The applicants appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. Both the first and second name applicants gave oral evidence at the hearing.

7. At the hearing, the Tribunal put information to the applicants under s.359AA of the Act that would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal advised the applicants that the Tribunal was raising the information with the applicants, not because the Tribunal had already made up its mind in relation to the information, but to give the applicants an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind . The Tribunal put to the applicants the following particulars of the information, explained its relevance and the consequences of relying on it, as follows:

   a.The particulars of the information are that the application for approval of the nominated position made by Keval Ash Man Pty Ltd in respect of the applicant’s Subclass 187 visa application was refused by the Department of Home Affairs on 12 September 2018, and that decision was not appealed by the nominator.  Further, a search of Departmental records undertaken by the Tribunal indicates that the applicant is not currently the subject of a nomination by an approved standard business sponsor, and that the applicant is currently on a WA-010 Bridging Visa;

   b.This information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant as required under cl.187.233(3) of the Regulations and it is a requirement for the grant of the Subclass 187 visa that the position specified in the visa application is the subject of an approved nomination;

   c.If the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified on the visa application is not the subject of an approved nomination, and that this would mean that the applicants do not satisfy a requirement for the grant of the Subclass 187 visa, and that the Tribunal must affirm the decision that is under review; and

   d.If the Tribunal relies on the ifnformation in making its decision, the Tribunal may find that the second and third name applicants do not meet the requirements of cl.187.311 of Schedule 2 to the Regualtiosn, as they would not be members of a family unit of a person (the applicant) who holds a Subclass 187 visa granted on the basis of meeting the primary criteria for the grant of the visa. This would mean that the Tribunal must affirm the decision that is under review in relation to the second and third named applicants.

8. The Tribunal explained that this would be the reason or part of the reason, for affirming the delegate’s decision to refuse the applicants’ visa applications, and invited the applicants to comment on or respond to the information, or to seek additional time to comment on or respond to the information.  The applicants did not seek additional time to comment on or respond to the information put to the applicants under s.359AA of the Act.

9. In response, the applicant advised the Tribunal that she understood that there is no approved nomination, but that she was hoping that the Tribunal would be able to assist her, and her family.  The applicant advised the Tribunal that she is not currently working, but has been actively seeking a new nominator, with no success to date.  Both the first and second named applicants advised the Tribunal that they had spoken with the nominator about appealing the decision in relation to refusal of the nomination, but that he was not prepared to do so.  

10. In the circumstances, the Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow additional time in which to establish that the requirements of cl.187.233(3) are met.

11. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] 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[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

12. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.187.233(3) of the Regulations is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information already, and the significance of the information to the applicants.

13. Clause 187.233 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 (the nomination). As such, this requirement cannot be satisfied by a later nomination of a position made by a different employer.  Accordingly, even if the Tribunal was minded to grant an adjournment for the applicants, this would be futile in the circumstances as the nominator has not sought a review of the decision to refuse the nomination.

14. In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information to demonstrate the applicant is the subject of an approved nomination, and that this information has not been forthcoming.  Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

17. 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.

18. 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.

19. At the hearing, the applicant gave some detail about her current situation, informing the Tribunal that she had previously been the subject of two prior nominations, employed in the position of hairdresser.  However, due to the personal circumstances of the nominators in both these cases, these businesses had closed, and as such the applicant was required to find a new nominator and go through the process again. The applicant advised that she was then sponsored by the nominator in this case, and had worked for him for two years before lodging the Subclass 187 visa application. In oral evidence at the hearing both the first and second named applicants advised the Tribunal that when the nomination and Subclass 187 visa was refused,  they had spoken with the nominator to seek his assistance in appealing the decisions, but that he had stated that while he was willing to meet all his obligations as an employer of the applicant, he was not prepared to appeal the decision to refuse the nomination. 

20. The applicant further advised the Tribunal that she and her husband (the second named applicant) have been married for some time, and had waited to start having children until the first named applicant was in a position to apply for the permanent Subclass 187 visa.  In oral evidence at the hearing the first and second named applicants advised that they had nothing left in their home country to go back to, as they had sold everything to support their application for permanent residency in Australia.

21. The Tribunal noted that, while the Tribunal understands that the circumstances are very difficult for the applicants, unfortunately the Tribunal does not have discretion in relation to the key matter under consideration, being whether there is a nomination on foot as required by cl.187.233(3) of the Regulations.  The Tribunal noted that, for the reasons explained, the outcome of the review rests entirely on whether there is a sponsorship on foot in relation to the applicant. 

22. The Tribunal notes that the issue before the Tribunal is whether the applicant meets the requirements of cl.187.233, and specifically whether the nomination referenced in cl.187.233(1) of the applicant’s Subclass 187 visa application had been approved as required under cl.187.233(3).

23. In this case, the nomination application referred to in cl.187.233(1) of the applicant’s Subclass 187 visa application was refused by a delegate of the Minister for Home Affairs on 12 September 2018, and as such there is no approved nomination. The decision in respect of the nomination application is not the subject of review before the Tribunal.  Accordingly, cl.187.233(3) is not met.

24. Therefore, cl.187.233 is not met.

25. 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.

26. The only basis of the application of the second and third named applicants is that they are a member of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the application of the second and third named applicants must also be affirmed because they do not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn

    
    

    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.