Kaur (Migration)

[2019] AATA 3823

Kaur (Migration) [2019] AATA 3823 (27 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Inderpal Kaur
Mr Kunal Chopra

CASE NUMBER:  1835652

HOME AFFAIRS REFERENCE(S):           BCC2017/4745283

MEMBER:Michael Cooke

DATE:27 June 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 27 June 2019 at 2:32pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 12 December 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.

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 the applicant was not the subject of an approved nomination.

6. The first named applicants appeared before the Tribunal by telephone from India on 27 June 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is that the applicant is not the subject of an approved nomination.

   Nomination of a position

10. 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.

11. 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.

12. The applicants were sent a Request for Information by the Tribunal on 14 February 2019 as follows:

    It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved. Information before us suggests that the nomination for the position identified in your visa application was not approved and that the decision to refuse the nomination is not the subject of an application for review: on 9 January 2019 the Tribunal decided that it did not have jurisdiction to review the nomination decision - 1832653. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the Presiding Member to determine.

    If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 28 February 2019.

13. In the Request the Tribunal outlined the applicant’s visa situation. The Tribunal asked her why she had not responded to the letter and the applicant stated (in oral evidence) that she never received the letter from her representative. The Tribunal then read out the letter to her in the hearing and explained her visa predicament as elaborated in the letter. It appeared that due to her lack of a nomination she could not succeed in her review and she no longer had a nominator with an application for review at the Tribunal which was undecided (T1, f.26). She asked if the Tribunal could wait while she lodged a new nomination application. The applicant informed her that it was not possible.

14. The applicant’s nominator was refused on 15 October 2018. The nominator subsequently applied for review to the Tribunal. On 9 January 2019 the Tribunal found that it did not have jurisdiction to review the nomination decision (AAT 1832653). Thus the applicant is not the subject of an approved nomination and there is no pending review of the decision to refuse the nomination. Lodging a new nomination application will not enable her to meet the criteria for the visa as explained in the letter from the Tribunal.

15. Therefore, cl.187.233(3) is not met by the applicant.

16. 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.

17. As the first named applicant does not meet the criteria for the visa as a result the second named applicant does not meet the criteria in cl.187.311 of the Regulations.

    DECISION

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

    Michael Cooke
    Senior 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.