Kaur (Migration)

[2019] AATA 2379

Kaur (Migration) [2019] AATA 2379 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ranjeet Kaur
Mr Gurpreet Singh
Master Shehraz Singh

CASE NUMBER:  1705137

HOME AFFAIRS REFERENCE(S):           BCC2016/1132909

MEMBER:Karen McNamara

DATE:18 April 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 18 April 2019 at 2:18pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – no approved nomination – nominator deregistered – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 15 March 2016. 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 Ranjeet Kaur (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because on the 2 February 2017, the nomination lodged by Supreet Pty Ltd, referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

6. As the nomination application has been refused, the delegate found the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations. Therefore the requirements of paragraph 187.233 have not been met.

7. The applicants applied to the Tribunal on 17 March 2017 for review of the delegate’s decision.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicants meet the requirements of cl.187.233

   Nomination of a position

2. 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.

3. 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.

4. On the 18 March 2019, the Tribunal found that the nominator, Supreet Pty Ltd had been deregistered and that it had ceased to exist as a legal entity. Accordingly, the Tribunal found that there was no longer a valid application for review and that the Tribunal had no jurisdiction in the matter.  As the nomination was found to be no longer a valid application for review, regulation 187.233(3) is therefore not met.

5. On 19 March 2019, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision that it did not have jurisdiction in the nomination application by Supreet Pty Ltd which the Tribunal explained was relevant to Mrs Kaur meeting cl.187.233(3) which requires the nomination to be approved.  As the position specified in Mrs Kaur’s visa application is not the subject of an approved nomination, regulation 187.233(3) is not met.

6. On 2 April 2019 the applicant’s migration agent advised the Tribunal via email that      “ Mrs Ranjeet Kaur is aware of the closure of Supreet Pty Ltd and the impact this has on her appeal of the 187 visa refusal.

   As it is not possible for the AAT to remit this appeal, we agree for the Tribunal to finalise the appeal based on the information currently held on file.”

7. The Tribunal resolved this matter on the papers.

8. The Tribunal notes that the applicants have not provided any evidence to confirm that they are the subject of an approved nomination.

9. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl.187.233 (3).

10. As such, the primary applicant does not meet an essential criterion for the grant of a subclass 187 visa. Therefore, cl.187.233 is not met.

11. As the primary applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicants Mr Gurpreet Singh and Master Shehraz Singh as members of her family unit, therefore are also unable to satisfy the criteria for this visa class.

12. As such the applicants do not meet an essential criterion for the grant of a subclass 187 visa, therefore, cl.187.233 is not met.

13. The applicants have 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

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

Karen McNamara
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.