Kaur (Migration)

[2019] AATA 1170

Kaur (Migration) [2019] AATA 1170 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sukhpreet Kaur
Mr Shubham Verma

CASE NUMBER:  1800909

HOME AFFAIRS REFERENCE(S):           BCC2016/3637295

MEMBER:Michelle East

DATE:2 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 02 April 2019 at 2:17pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – nomination application refused – appealed to Federal Circuit Court – Tribunal declined defer making its decision – decision under review affirmed

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

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 1 November 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 (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by the nominator was refused by the delegate.

6. The first named applicant (‘the applicant’) appeared before the Tribunal on 28 March 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 whether the applicant meets the requirements of cl.187.233.

   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 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 Tribunal provided information to the applicant pursuant to section 359AA of the Act giving clear particulars of the information which would be the reason or part of the reason for affirming the decision under review.  The Tribunal advised that the nomination application lodged by the nominator which was refused by the delegate on 22 November 2017 was affirmed by a differently constituted Tribunal on 30 April 2018.  The applicant and her representative stated they were aware of this decision and that the decision has since been appealed to the Federal Circuit Court and is still awaiting a hearing date with a first directions hearing later this year.

13. The applicant also provided evidence that she was continuing to work for the same employer and provided sample pay slips to support her evidence.

14. Subsequent to the hearing the applicant requested the Tribunal delay making its decision until after the outcome of the Federal Circuit Court hearing on the decision of the Tribunal for the associated nomination decision.

15. The Tribunal has carefully considered the applicants’ request for it to defer making its decision until the outcome of the Federal Circuit Court hearing. It finds however, that given the likely delay until that matter is finalised, it is not reasonable to defer making a decision on the current visa application.  The Tribunal is mindful that the applicants have appeal rights with respect to this decision should they so choose.

16. The Tribunal has sympathy for the applicants in this matter, however, based on the evidence before it, finds that the nomination mentioned in subclause 187.233 lodged by The Trustee for MRP Foods Family Trust has not been approved at the time of the Tribunal’s decision.  As a result, the Tribunal finds that the applicant does not meet the requirements of clause 187.233 at the time of its decision.

17. 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.

18. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 187 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    DECISION

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

    Michelle East
    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.