Kaur (Migration)

[2023] AATA 1414

Kaur (Migration) [2023] AATA 1414 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amanjot Kaur
Master Aviraj Singh Maan

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  1925346

HOME AFFAIRS REFERENCE(S):          BCC2018/900191

MEMBER:Penelope Hunter

DATE:1 May 2023

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 01 May 2023 at 1:55pm

CATCHWORDS 
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Café or Restaurant Manager –applicant failed to attend hearing – nomination application associated with the position was not approved –decision under review affirmed

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

CASES
Hasran v MIAC [2010] FCAFC 40

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 (Cth) (the Act).

2. The applicants applied for the visas on 25 February 2018. 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 (Cth) (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  Café or Restaurant Manager. The second named applicant is her spouse and has applied for the visa as a member of her family unit.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the related nomination application by the applicant’s sponsoring employer, Colser Investments Pty Ltd had not been approved. The applicants have has submitted a copy of the decision record under review to the Tribunal.

6. On 27 March 2023, the Tribunal wrote to the applicants and advised it had considered all the material before it relating to the application but was unable to make a favourable decision on the basis of that information alone. The applicants were invited to appear before the Tribunal on 28 April 2023 via teleconference to give evidence and present arguments. The applicant was represented in relation to the review.

7. On 14 April 2023, the Tribunal also wrote to the applicant pursuant to the provisions of s 359A of the Act inviting them to comment on information that it considered would be a reason or a part of the reason for affirming the decisions under review. The relevant information was that on 12 September 2022, the Tribunal had affirmed the decision to refuse the related nomination by Colser Investments Pty Ltd. The Tribunal explained the relevance of the information and informed the applicants that if it relied on the information it may find that the relevant nomination in relation to the visa application had not been approved. Consequently, the applicant would not be able to meet the requirements of cl 187.233(3) of Schedule 2 to the Regulations and the decisions under review would be affirmed. The applicants were invited to provide any comment or response on the hearing date, 28 April 2023.

8. The applicant did not attend the hearing on 28 April 2023, the Tribunal made several unsuccessful attempts to contact them on the number notified to the Tribunal in relation to the review application. They also did not respond to the hearing invitation or the Tribunal’s invitation to comment dated 14 April 2023.

9. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s 379A(5), and the invitation has not been returned to sender. The invitation further set out the number on which the Tribunal would contact the applicants, they were requested to confirm that the number was correct, and it further stated that if they did not appear at the Tribunal hearing, the Tribunal may make a decision on the review application with taking further action to allow or enable them to appear.

10. Furthermore, as the applicants did not appear at the hearing or provide any response to the invitation to comment of 14 April 2023, s 359C of the Act applies and pursuant to s 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. Accordingly, the Tribunal has determined to make a decision on the review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies cl 187.233(3) of Schedule 2 to the Regulations.

    Nomination of a position

13. 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 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

15. The application had been made for the visa under review on the basis of a nomination of Café or Restaurant Manager by Colser Investments Pty Ltd. As set out the delegate’s decision record this nomination was refused by the Department on 29 July 2019.

16. On the information before the Tribunal, and as set out in the s 359A correspondence sent to the applicant, Colser Investments Pty Ltd had applied to the Tribunal for a review of the Department’s decision to refuse the nomination. On 12 September 2022, the Tribunal (differently constituted) affirmed the decision to refuse the nomination. This means that the delegate’s decision has not changed and the Tribunal finds that the relevant nomination for the applicant has not been approved. The applicants have presented no information to dispute this finding.

17. Therefore, cl 187.233 is not met.

18. 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.

19. The second named applicant has applied for the visa as a member of the family unit of a person who satisfies the primary criteria. There is no evidence that the second named applicant would otherwise themselves meet the primary criteria.  As the Tribunal has found that the applicant does not satisfy one of the primary criteria it follows that the second named applicant does not meet the secondary criteria for the visa and the decision to refuse his visa is also affirmed.

    DECISION

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

    Penelope Hunter
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.