Kaur (Migration)

[2019] AATA 2864

Kaur (Migration) [2019] AATA 2864 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur
Mr Mandeep Singh
Master Sahib Singh

CASE NUMBER:  1811781

HOME AFFAIRS REFERENCE(S):           BCC2017/1483454

MEMBER:Alan McMurran

DATE:25 February 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 25 February 2019 at 3:53pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook (ANZSCO 351411) – nomination not approved – requirement for nomination to be approved first before visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311, rr 1.13A, 1.13B

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 on 11 April 2018, 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 24 April 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 of Cook (ANZSCO 351411).

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 Minister had not approved the nomination made on behalf of the applicant.

   Background

6. The applicant is a 30-year-old citizen of India who has applied for the review of her visa refusal as the primary applicant, together with her husband and their child as secondary applicants.

7. The applicant came to Australia on 28 September 2008 on a Higher Education 573 visa to study. The applicant obtained an Advanced Diploma in Tourism between February 2011 and February 2013, and subsequent to that an AQF Certificate IV in Commercial Cookery. At the time of decision, the applicant is working casually for Travelodge in hotel at Blacktown.

8. The applicant is seeking to remain in Australia to live and work with her family, although currently does not have a sponsor or an approved nomination.

9. The applicants appeared before the Tribunal on 22 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Shaheen Karim. 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 the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved for the occupation of Cook.

12. The Tribunal has for consideration available to it the Tribunal’s file, containing submissions from the applicant and electronic documents from the Department’s file[1]. The Tribunal has also considered the applicant’s submissions made at hearing.

    [1] BCC 2017 1483454 - 245600152

    Nomination of a position

13. 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.

14. 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.

15. The applicant was nominated for the occupation of Cook by the trustee for the Downs Hotel Unit Trust in about April 2017.Following the refusal of the nomination application on 8 March 2018 by the Department, the applicant was sent a natural justice letter on the same date, advising her that the nomination application had been refused and the visa application could therefore not be approved. The applicant was asked if she wished to withdraw her application.

16. The applicant did not respond and the delegate made the decision on 11 April 2018 to refuse the visas.

17. The applicant then sought this review by filing an application with the Tribunal on 25 April 2018. No further information was provided by the visa applicants until 3 May 2018, when the applicant submitted to statutory declarations attesting to her good character, her hard work and ability, and her desire for Australian permanent residency for herself and her family.

18. The Tribunal sent a letter to the applicant on 7 December 2018 advising her that it was a requirement for the grant of the visa that the nomination has been approved. The letter noted that the refusal of the nomination application was not the subject of an application for review. The letter informed her that the decision to refuse to grant the applicants visas must be affirmed in those circumstances. The applicant was requested to respond as to whether the position nominated was in fact the subject of an approved nomination or pending application for review and to do so by 21 December 2018. Alternatively the applicant was invited to withdraw her application.

19. The applicant responded by email on 19 December 2018 “electing to go for the hearing by the presiding member which is the reason for my application to the AAT and let the member decide my case”.

    Submissions

20. The oral submissions at the hearing from the applicant were essentially that the applicants are people of good standing and that the applicant in particular is a person of good character, honest and hard-working. That was supported in writing by a Councillor from Canterbury Bankstown, Mohammad Zaman. The Tribunal also notes the previous statutory declarations from the witnesses (S and N Karim) made 3 May 2018 and 19 May 2018 respectively and lodged with the Tribunal.

21. The Tribunal accepts the evidence that the applicant is a person of good character and good standing and that the question of character is not an issue in this review.

22. At the hearing, the Tribunal asked the applicant whether she had read and understood the reason for the refusal of her visa. The applicant responded that she believed the employer (nominator) had made mistakes with the application which were not hers, and therefore it was refused. She was aware that the refusal was not the subject of a review.

23. The applicant was asked why she was proceeding with the visa review, it having been refused for want of a successful nomination. The applicant responded saying she really had no answer other than for the fact that she had achieved her qualifications and met her migration requirements. Although there was no nomination, she believed she had lodged her visa application for her own qualifications and could not understand why the nomination had not been approved in light of those qualifications.

24. The applicant said that she thought the visa applications and the nomination applications were “separate”. The Tribunal explained to her the requirements of the regulations and that it was necessary to have the nomination approved first, before the visa applications could be approved. The Tribunal explained to her again that the visa applications cannot succeed if there is no approved nomination. The applicant said she understood that requirement, and was invited to make any other comments.

25. The applicant submitted that she had been in Australia for 11 years and she had experienced this issue now on four occasions. She gave a history of an employer who shut down a business in 2013 while the applicant was on a 457 visa and that her visa was subsequently refused. She also said that she had found another employer in 2014, but this employer had then become barred and her subsequent 457 visa application also refused.

26. The applicant said she had been unsuccessful in finding a suitable employer or nominator until the recent related application to these proceedings. She said it was due to no fault of hers that the current sponsor’s application had been refused and that the Tribunal should offer her a chance to continue to live in Australia and find other employment as she had met all her requirements and the refusal was due to no fault on her part. She said that she and her family had made considerable contributions and now become established in the community and had a lot more to contribute. She said that she was currently working casually at a Travelodge hotel in Blacktown, who had not been approached as yet to sponsor her for employment. The applicant asked again for the tribunal to give her an opportunity or “chance” to continue to live and work in Australia.

    Findings

27. The Tribunal finds that the applicant is the person nominated for the position of Cook in a related application which has been refused by the department.

28. The Tribunal notes that the applicant has not withdrawn her application and has asked the Tribunal to determine the matter of her review. The Tribunal finds that there is no additional evidence before it, other than the material that was before the Department, and the information referred to above concerning the applicant’s good character and work background.

29. The Tribunal finds that it has no discretion in relation to the application of the criteria set out in the subregulation 187.23. In particular, the Tribunal has no discretion to approve a visa related to a nomination application which the Minister has not approved.

30. The Tribunal has some empathy for the applicant who has been in Australia for approximately 11 years, and who has achieved her educational qualifications and worked diligently in that period, and who has built up community ties and established herself here with her family.

31. Unfortunately however, the Tribunal is not able to consider the application any further in circumstances where a nomination application for the occupation of cook has not been approved by the Department for an employer/nominator related to this application and as a result, the applicant is unable to meet the criteria in cl.187.233 (3) as the Minister has not approved the related nomination application.

32. Therefore, cl.187.233 is not met.

    Secondary Applicants

33. The Tribunal finds that the secondary applicants are not members of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and who have made a combined application with the primary applicant.

34. The Tribunal finds the secondary applicants do not meet the criteria in cl.187.311.

35. 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.

    DECISION

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

    Alan McMurran
    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.