Kaur (Migration)

[2018] AATA 5866

Kaur (Migration) [2018] AATA 5866 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sandeep Kaur

CASE NUMBER:  1703743

HOME AFFAIRS REFERENCE(S):           BCC2016/694249

MEMBER:Karen Synon

DATE:24 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 24 October 2018 at 10:40am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13, Schedule 2, 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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 February 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 applicant is seeking the visa in 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 nomination lodged by ‘Greenstar Valet Glen Iris Pty Ltd’ was refused on 9 January 2017.

6. The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review by her registered migration agent who was present throughout the hearing.

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 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 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. Before the hearing the applicant provided the following, relevant statement:

    Recently my application for a 187 RSMS visa was refused on 16^th February 2017, informing that a visa cannot be granted unless the relevant legal requirements that are specified in the Act and the Regulations are satisfied. Clause 187.233 of Schedule 2 to the Migration Regulations 1974 has not been satisfied.

    I was granted a 457 visa as a Cook on 26 November 2013.  I worked for 20 months with my employer on 457 visa.  Unfortunately my employer closed the business and my SBS and nomination was withdrawn.  Before this happened my previous employer has closed the business for 1 month for renovation during this period he asked me for handloan (sic) to pay his bills.  Since I don’t have any money to give him handloan, I couldn’t help him out at that time.  Because he couldn’t have cash flow I think it closed the business and informed to immigration his withdrawal of my nomination.

    Later I received an email from the department asking to find another [an] employer within 90 days and apply for a nomination.  During this period I could find an employer for RSMS nomination but they don’t wanted (sic) any person on 457.  So within the 90 days period I put the applications for RCB, nomination and 187 visa application and I requested the department not to cancel my 457 visa so that my application for RSMS can be linked together, thinking that my 457 visa may not be cancelled.  This didn’t happened (sic) and unfortunately my 457 visa was cancelled.  And I was issued with a bridging visa E.  I feel I didn’t get the natural justice here.

    Now with reference to my 187 visa application when I lodged my application as a cook where my prospective employer was Greenstar Valet Glen Iris Pty Ltd again unfortunately, here also my employer requested for some hand loan which I hesitated to give them any money, due to this he also couldn’t get his papers in time, that’s (sic) he said my sponsor not providing further documentation for my nomination.  Since he couldn’t provide the requested documents my visa was refused later on 16 February 2017 for RSMS 187.  I was eligible for the visa under the programme and had all the qualification for the position.  I lodged my review application within the 21 days of refusal of my visa and hence valid.  I believe I have review rights based on my visa application, which was lodged validly whilst I was in Australia.  I wish to have my application to be heard before the member to put forward my case.  I kindly request the member to consider my application and consider merits of my application…I am applying for a natural justice, so that I get for justice and revoke my visa application or given opportunity to apply for another visa.

13. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to her.  As recorded in the primary decision, a copy of which she provided to the Tribunal, this position nomination is no longer available to her as the nomination lodged by Greenstar Valet Glen Iris Pty Ltd was refused by the department on 9 January 2017.

14. Invited to make any submissions the applicant explained the circumstances leading to her 457 cancellation and that she applied for the 187 visa within the required 90 days.  After 9 months her file was opened and the department requested documents but they were not provided by her proposed sponsor.  The applicant said she just needs one more chance to apply onshore for any type of visa because she does not want to go back to apply.  She studied here and has the experience.  The Tribunal explained that the only issue before it is whether she has an approved nomination that has not been withdrawn.  The applicant agreed that the nomination for the occupation of Cook with Greenstar Valet Glen Iris Pty Ltd is no longer available to her.

15. Based on the information before it in the primary decision and confirmed by the applicant’s evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.  Therefore, cl.187.233 is not met.

16. 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

17. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Karen Synon
    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.