Kaur (Migration)

[2018] AATA 2941

Kaur (Migration) [2018] AATA 2941 (16 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harpreet Kaur
Mr Ripu Daman
Master Aryk Sharma

CASE NUMBER:  1710178

DIBP REFERENCE(S):  BCC2016/3071573

MEMBER:Peter Emmerton

DATE:16 July 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 16 July 2018 at 4:36pm  

CATCHWORDS
Migration – Regional Employment Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry Scheme – Nomination approval – Nominator withdrew application for review – Information not provided within the prescribed timeframe – Secondary applicants – Members of the same family unit

LEGISLATION
Migration Act 1958, ss 65, 359C, 360
Migration Regulations 1994, r 5.19 Schedule 2 cls 187.233, 187.311

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 15 September 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

6. The delegate refused to grant the visas because the applicant did not meet cl.187.233(5) of Schedule 2 to the Regulations because the nominated position was no longer available.

7. The applicants were represented in relation to the review by their registered migration agent.

8. On 11 May 2017 the applicant applied to the Tribunal to review the delegate’s decision. A copy of the delegate’s decision was provided to the Tribunal with the review application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the position to which the application relates has been approved.

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

12. 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.

13. The position to which this application relates is the position of Cook, working for the applicant’s sponsoring employer Chennai Sweets Pty Ltd.

14. On 13 March 2017 the delegate refused the nomination. On 29 March 2017 Chennai Sweets Pty Ltd lodged an application for review of the decision with the Tribunal. On 12 June 2018 Chennai Sweets Pty Ltd lodged a withdrawl of application for review with the Tribunal.

15. On 29 June 2018 the Tribunal wrote to the applicant pursuant to s.359(A) of the Act, inviting the applicant to comment or respond to the information that the application for approval of the nominated position made by Chennai Sweets Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but they have now withdrawn that application for review.

16. It was stated that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

17. It was also stated that if we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

18. They were invited to give comments on or respond to the above information in writing. The applicant did not respond to the letter.

19. The invitation advised the applicant that if the information was not provided in writing by 13 July 2018 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

20. As the applicant has not provided the information within the prescribed period, and no extension has been sought or granted, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The Tribunal has proceeded to decision without taking any further steps to obtain the information, as it is evident the information cannot be provided.

21. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is no longer available to the applicant. The Tribunal finds the applicant is unable to satisfy 187.233(5).

22. As a consequence the Tribunal also finds that the secondary applicants are unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.

23. Therefore, cl.187.233 is not met.

24. 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.

25. DECISION

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

    Peter Emmerton
    Member