Kaur (Migration)

[2019] AATA 1948

Kaur (Migration) [2019] AATA 1948 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pardeep Kaur
Mr Harjeet Singh
Miss Amber Preet Kaur Sandhu

CASE NUMBER:  1812622

HOME AFFAIRS REFERENCE(S):           BCC2016/2194252

MEMBER:Bridget Cullen

DATE:18 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 18 February 2019 at 5:13pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent)(Class RN) – Subclass 187 Regional Sponsored Migration Scheme – postponement of hearing – not yet received any information from applicant – not provided the comments within the prescribed period – no extension granted – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233, 187.311, rr 1.13A, 1.13B

CASES

Hasran v MIAC [2010] FCAFC 40

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 28 June 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 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.187.233 of Schedule 2 to the Regulations because the associated nomination lodged was refused by a delegate of the Minister for Home Affairs.

6. The Tribunal originally scheduled a hearing for 18 December 2018. The applicant, on 14 December 2018 requested a postponement on the basis of suffering an eye and ear infection. Attached with the request was a medical certificate which said:

   “Mrs Pardeep Kaur is unable to work or attend court from 12/12/2018 to 12/01/2019 inclusive. She has been having severe infection of her eyes. She is also struggling with episodes of ear infection and is awaiting review in hospital for that.”

7. The Tribunal granted the postponement request, and scheduled a hearing for 15 January 2019. On 14 January 2019, the applicant wrote to the Tribunal, again requesting a postponement. The postponement request included the following:

   “I am writing to inform you that my hearing is on 15th of January 2019 but I am not able to attend this hearing as I am still suffering from my ear infection which get's more worse. As Mater hospital toldl me that I have to go for surgery because it's getting worse.So,its my humble request to please postpone my hearing date as my medical condition don't allow me to do so.I will be very thankyou to you.” (Errors in original)

8. Attached with the 14 January 2019 postponement request was a medical certificate, the contents of which corresponded with the applicant’s statement.

9. The Tribunal requested further information from the applicant, specifically the information referenced by the applicant from the Mater Hospital, as evidence that the applicant required surgery and as a result, was unable to attend a hearing.

10. The applicant responded saying that they required additional time to get an appointment from the hospital and get documents from them before they could send it to the Tribunal. This request was refused.

11. The applicant did not appear before the Tribunal on 15 January 2019. The Tribunal dismissed the application on 15 January 2019, providing 14 days, until 29 January 2019, for the applicant to make a reinstatement request.

12. On 27 January 2019, the applicant, in making a reinstatement request, provided the Tribunal with the following:

    “I am writing this to let you know as you send me Notification of Dismiss of my Application as i was failed to attend the scheduled hearing .I provide you my medical certificate as i am very sick before my hearing but you said you need further documents from mater hospital .i sent you email saying that i will definitely provide you documents from hospital but i need some time to get them from hospital but i got email from you that you will not give me more time and i have to come to attend hearing on 15th jan which was not possible for me as i was not in that condition.My health dont allow me.

    I request you Sir please give me another hearing date ,so i can support my application .I been to my doctor as my ear is not getting better it is going more worse which effect my facial nerves as well.i am undergoin ng other tests as well.As my medical is attached ,please consider my case once and please give me another date for hearing.I hope you can understand i my situation.” (Errors in original)

13. The Tribunal reinstated the application on 1 February 2019, as the attached medical certificate included that the treating General Practitioners Surgery had not yet received the full paperwork from the Mater Hospital. For completeness, to date, the Tribunal has not yet received any information from the applicant, evidencing that she requires surgery at the Mater Hospital.

14. On 1 February 2019, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information was to the effect that the associated nomination was refused by the Department of Home Affairs, and no appeal of that nomination had been lodged. The Tribunal indicated that this was relevant to the review as it indicated that the applicant could not meet cl.187.233(3) of the Regulations, and if the information was relied upon, the Tribunal would have no choice but to affirm the decision under review.

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 15 February 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant has an approved nomination for the purposes of cl.187.233(3) of the Regulations.

    Nomination of a position

19. 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.

20. 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.

21. The applicant lodged their visa application on 28 June 2016, in relation to an appointment of Cook. The supporting nomination application, lodged by their nominator, was refused on 14 March 2018. No appeal of this nomination refusal was made.

22. To date, the applicant has not provided the Tribunal with an approved nomination. As such, cl.187.233(3) is not met.

23. Therefore, cl.187.233 is not met.

24. As the primary visa applicant does not meet cl.187.233, it follows that the secondary applicants do not meet cl.187.311, as they are not members of a family unit of a person who holds a Subclass 187 visa.

25. 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

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

    Bridget Cullen
    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.