KAUR (Migration)

[2018] AATA 4846

KAUR (Migration) [2018] AATA 4846 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajwinder KAUR
Mr Jaspreet Singh
Miss Gurleen KAUR

CASE NUMBER:  1616171

HOME AFFAIRS REFERENCE(S):           BCC2015/3630120

MEMBER:Jennifer Cripps Watts

DATE:3 October 2018

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 03 October 2018 at 3:02pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – nominated position – café and restaurant manager – approved nomination – Tribunal affirmed nomination refusal – secondary applicants – members of the same family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 350A, 360
Migration Regulations 1994 (Cth), Schedule 2 cls187.233, 187.314

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 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 2 December 2015. 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 Café and Restaurant Manager 141111.

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 position to which the applicant’s visa application relates was not the subject of an approved nomination.

6. The Tribunal sent the applicant a hearing invitation, through her representative.  On 22 August 2018, a response to the invitation was received, in writing, indicating that none of the applicants, or the representative, would attend the hearing.  A Tribunal case officer sought clarification and the representative confirmed, in an email on the same day, that he had been instructed by the applicants that they would not be attending the hearing.

7. The Tribunal is satisfied that, pursuant to s.360 of the Act, the applicants were invited to the scheduled hearing on 14 September 2018 to give evidence and present arguments and that they declined the invitation. They provided no additional documentary evidence in support of the review application.

8. On 14 September 2018, the Tribunal affirmed the decision to refuse the nomination relating to Rajwinder Kaur for the position of Café or Restaurant Manager.  The applicant in this matter was sent a s.359A letter on 17 September 2018 informing them that she was not the subject of an approved nomination, which is a requirement for the grant of the visa that is under review, and the applicant was invited to comment or respond by 2 October 2018 or within any granted extension of time.  She did not request an extension of time and did not respond to the invitation by 2 October 2018.

9. The applicants were represented in relation to the review by their registered migration agent, Mr Spandan Karki, Migration Agent Registration Number 1281245.

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 position to which the 187 visa application that is the subject of this review relates to a nomination approved by the Minister:  r.187.233(3).

    Nomination of a position

12. 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.

13. 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.

14. The applicant lodged her application for a subclass 187 Regional Sponsored Migration Scheme visa on 2 December 2015, under the Direct Entry Stream.

15. The Tribunal was provided with a copy of the delegate’s decision to refuse her visa by the applicant when she lodged her review application.  Information in the decision indicates that on 15 August 2016 a nomination identifying the person who it will employ (the applicant in this matter), lodged by Rupinder Kaur, was refused by the Minister.  On the same day, a natural justice letter was sent to the 187 visa applicant, Ms Kaur, inviting her to comment on the nomination refusal.  She did not respond and the delegate refused her 187 visa, on 26 September 2016, because she did not meet the requirement that her application was the subject of a nomination that had been approved by the Minister:  r.187.233(3).  Both the nominator and applicant lodged review applications with the Tribunal.

16. The applicant lodged an application with the Tribunal for review of the delegate’s decision, on 3 October 2016, within time.  Her matter was allocated to this member on 16 August 2018 and the applicant was invited to attend a hearing to give oral evidence and provide any other information she wished to be considered on the review.  The applicant responded to the hearing invitation and declined the invitation to appear at the scheduled hearing. 

17. Communication by the Tribunal with the applicant has been with through her authorised recipient/representative, Mr Spandan Karki.  The Tribunal has no information before it that Mr Karki is no longer the applicant’s representative.

18. On the evidence, the position to which the application in this matter relates is not the subject of an approved nomination at the time of this decision.  Therefore, cl.187.233 is not met.

19. 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.

20. The secondary applicants are not members of the family unit of a person who holds a subclass 187 visa who has satisfied the primary criteria as required by cl.187.311.  Accordingly, the Tribunal must also affirm the decision to refuse their visas because they do not satisfy cl.187.311.

    DECISION

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

    Jennifer Cripps Watts
    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.