Kaur (Migration)

[2019] AATA 3284

Kaur (Migration) [2019] AATA 3284 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kanwaljeet Kaur
Mr Bhupinder Singh
Miss Jasleen Kaur
Master Gurkaran Singh

CASE NUMBER:  1833852

HOME AFFAIRS REFERENCE(S):          BCC2017/2330147

MEMBER:Karen McNamara

DATE:29 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2019 at 12:05pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – subject of an approved nomination – nomination application refused – availability of nominated position – nominating entity deregistered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 30 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 Mrs Kanwaljeet Kaur (the applicant) is seeking the visa in Temporary Residence Transition stream.

5. On 2 November 2018, the delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because on 27 September 2018 the nomination lodged by Bathurst Hair and Beauty Pty Ltd was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicants lodged a review application with the Tribunal on 19 November 2018 and provided the Tribunal with a copy of the delegate’s decision to refuse the visas.

7. The Tribunal wrote to the applicants on 7 March 2019, advising that information before the Tribunal suggested that the nomination for the position identified in their visa application, was not approved and that the decision to refuse the nomination is not subject of an application for review.  The applicants were invited to provide evidence that their application was subject to an approved nomination or a pending review of the decision to refuse the nomination.

8. On 10 March 2019, the Tribunal received an email (sender failed to identify themselves) from email address “[Email Address 1]“. The email claimed that the sponsor had lodged a review of the nomination and a receipt of the review application was attached.

9. On 9 May 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to their case.

10. On 28 May 2019, the applicant advised the Tribunal via email that due to a family emergency, the applicant would not be able to attend and sought a “two month or more” postponement. No supporting evidence of the emergency was provided.

11. On 29 May 2019, the Tribunal advised the applicant in writing that the postponement was not granted as the applicant had not provided supporting evidence as to the reason sought for postponing the hearing. The Tribunal offered the applicant the opportunity for their matter to be heard by telephone or alternatively they could provide evidence by way of a written submission.

12. On 30 May 2019, the applicant provided the Tribunal with a medical certificate attesting to the health of her mother in India. The applicant claimed that due to her mother being unwell she is not coping and would not be fit to present her case. 

13. The Tribunal noted that the medical certificate was not for the applicant and that there is no persuasive evidence before the Tribunal to suggest the applicant was not fit to attend the hearing.

14. On 31 May 2019, the Tribunal advised the applicant by email, that the hearing would not be postponed and requested the applicant to provide a telephone number in order for the hearing to be conducted via telephone. The applicant was also reminded that she could present her evidence as a written submission.

15. The applicant appeared before the Tribunal by telephone on 25 June 2019 to give evidence and present arguments. During the hearing the applicant became upset and unable to provide coherent evidence. The Tribunal adjourned the hearing.  

16. On 3 June 2019, the Tribunal wrote to the applicant advising that the resumption of the hearing was scheduled on 25 June 2019 at 10 am.

17. On 5 June 2019, the Tribunal received an email from email address “[Email Address 1]” requesting the Tribunal to “send us a list of documents/evidences so that we can request to the employer so that we can provide to you as soon as possible.” The writer did not identify themselves.

18. On 25 June 2019, the applicant appeared before the Tribunal by telephone to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant meets the requirements of cl.187.223.

    Nomination of a position

21. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

22. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19)

    ·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.

23. At the resumed hearing of 25 June 2019, the applicant told the Tribunal that she “didn’t know what had happened and that she is still working there”.

24. The Tribunal then raised information with the applicant in accordance with s.359AA of the Act, namely that there is information before the Tribunal that suggests the nominator is no longer trading. The Tribunal told the applicant particulars of the information that being Bathurst Hair and Beauty Pty Ltd was deregistered on 9 March 2018 by the Australian Security and Investments Commission (ASIC). The applicant was told that this information is relevant because it suggests that the nominated position is not available to the applicant.

25. The applicant was told that If the Tribunal relies on this information together with other evidence before it, it may not be satisfied under r.187.223(5) that the position is still available to the applicant and further under r.187.223(2) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.  

26. The applicant was invited to comment on or respond to this information. The applicant advised that she would respond in writing. The Tribunal sought a written response by 12 July 2019. The Tribunal wrote to the applicant on 10 July 2019 confirming the requirement of the applicant to provide a submission by 12 July 2019.

27. At the hearing the Tribunal asked the applicant when she last attended the premises of the nominator and worked. The applicant did not respond and the Tribunal repeated the question. The applicant eventually told the Tribunal that she is depressed and is taking holidays and now she is in shock.

28. On 11 July 2019, the applicant advised the Tribunal that she required an extension to provide the written submission due to her mother’s ill health. The Tribunal responded to this request by email on 12 July 2019, advising the applicant that an extension was granted to 26 July 2019 and that no further extension will be provided given the applicant has been aware of the Department’s decision since 2 November 2018.

29. On the 26 July 2019, the Tribunal received the following submission by email from the applicant.

    “I have been going to salon but I was not aware the owners changes and the old compnay [sic] closed .The Salon was still operating and I was going there regularly and operating the salon as I did generally as I had the keys.

    The owners agreed to keep it running and I was operating but I was not aware of the chnage [sic]. The salon had the same name and sign board also. I have since spoken to the new owner and they are ready to keep me with them.

    The new owners were not aware of my visa requirements also. Since then I have spoken to them and they are keep to employ me as like before.

    Salon has been closed since I stopped going after my application to the MRT. I will be appreciate if you can be granted some time so my new owners can seek legal advise [sic] for approval.”

30. The Tribunal has considered the information before it and notes the applicant’s claim that she still works in the business. The Tribunal has afforded the applicant numerous extensions of time to respond to the Tribunal’s concerns as to her current employment with the nominator, however the applicant has not provided to the Tribunal any form of evidence to support her claim.

31. In regard to the applicant’s email of 10 March 2019, claiming that the nominator had lodged a review of the nomination, information before the Tribunal shows that the nominator, Bathurst Hair and Beauty Pty Ltd was deregistered as an Australian proprietary company limited by shares on 9 March 2018, as a consequence, it therefore ceased to be a legal entity capable of continuing with their review application before the Tribunal. On 12 December 2018 the Tribunal found it did not have jurisdiction in that matter.

32. In consideration of the evidence before it, the Tribunal finds that there is no evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

33. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore the applicant does not meet cl.187.223(2) of Schedule 2 to the Regulations.

34. Therefore, as the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.223 is not met.

35. There is no evidence before the Tribunal to indicate that the second, third or fourth applicant meets the primary requirements for grant of the visa.

36. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicants Mr Bhupinder Singh, Miss Jasleen Kaur and Master Gurkaran Singh as members of Mrs Kanwaljeet Kaur’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.187.311.

37. The applicants have only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.