Kaur (Migration)

[2023] AATA 907

Kaur (Migration) [2023] AATA 907 (30 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajwinder Kaur
Mr Dawinderjit Singh
Master Jasjit Singh Mann

CASE NUMBER:  1927769

HOME AFFAIRS REFERENCE(S):          BCC2018/938997

MEMBER:Namoi Dougall

DATE:30 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the first and third named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

The Tribunal does not have jurisdiction in relation to the second named applicant.

Statement made on 30 March 2023 at 12:36pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of ­an approved nomination – 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 (Cth) (the Act).

2. The applicants applied for the visas on 27 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 Cook.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application lodged by Ian Crouch (the nominating business) was refused by a delegate for the Minister on 8 August 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. On 14 March 2023, the Tribunal was advised by the applicant that second named applicant had unfortunately died on 19 February 2022. Therefore, the Tribunal no longer has jurisdiction in relation to the second named applicant.

7. On 16 March 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 187 visa on the basis of a nomination of a position made by the nominating buisness and that on 29 July 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and on 17 January 2023 the Tribunal found that it did not have jurisdiction in relation to the application for review.

8. The Tribunal’s letter also explained that the adverse information is relevant to the applicant’s review as one of the requiems for the grant of a Subclass 187 visa is that the relevant nomination, that is the nomination of the position that the applicant relied on when lodging your visa application, has been approved. If the Tribunal relies on the adverse information, then the Tribunal will find that the applicant does not meet the requirements of cl.187.233 and the decision under review will be affirmed. The applicant was invited to comment on or respond to the letter in writing.

9. The applicant appeared before the Tribunal on 30 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

Nomination of a position

1. 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.

2. 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.

3. At hearing the Tribunal explained the above criteria, particularly the criterion requiring the position to be the subject of an approved nomination was explained to the applicant comprehensively. The applicant confirmed that she understood these requirements. Further, the Tribunal explained that the nomination must be the one that was the subject of the declaration made as part of the current visa application. The applicant confirmed that she understood this requirement.

4. At the hearing, the Tribunal summarised the letter of 16 March 2023, in particular the adverse information as to the nomination application lodged by the nominating business being refused by the Departmental and that decision being affirmed by the Tribunal.

5. The Tribunal asked if the applicant had any response or comments on the adverse information and the applicant stated that the wrong information was given when the nominator was called. Most of the time the owner was not at the restaurant, and he gave ‘wrong information’ to the Department.  He was rarely at the restaurant, and he said she did not work for him, but she was working in the restaurant and that is why they applied to the Tribunal. The Tribunal asked if she was currently working in the restaurant of the nominator and applicant stated that she is not currently working for hm. Last year her spouse passed away and she had to look after her son, and she was waiting on the Department’s decision. Owner. The Tribunal explained that as the applicant does not have an approved nominator, she cannot meet the requirements of cl.187.233. The Tribunal suggested that the applicant seek advice.

6. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination.

7. Therefore, cl 187.233 is not met.

8. 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.

9. As the first named applicant does not satisfy cl.187.233 for the grant of a Subclass 187 visa, it follows that the third named applicant does not meet cl.187.311 for the grant of a Subclass 187 visa.

DECISION

1. The Tribunal affirms the decision not to grant the first and third named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   The Tribunal does not have jurisdiction in relation to the second named applicant.

Namoi Dougall
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.