Kaur (Migration)

[2018] AATA 2688

Kaur (Migration) [2018] AATA 2688 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs MANPREET Kaur
Mr Gurvinder Singh BRAR
Miss TRIPT BRAR
Miss SIFAT KAUR BRAR

CASE NUMBER:  1730659

DIBP REFERENCE(S):  BCC2016/1563332

MEMBER:Mary Sheargold

DATE:15 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 June 2018 at 2:55pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) – Subclass 187 Regional Sponsored Migration Scheme – Approval of nomination – Business sold – New employment – Not in regional Australia – No approved nomination – Decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19, Schedule cls 187.233, 187.311

CASES
Singh v MIBP [2017] FCAFC 105

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 27 April 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. 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.

5. On 21 November 2017, the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because there is no approved nomination, and because the secondary applicants did not meet the requirements in cl.187.311(a) of Schedule 2 to the Regulations because the secondary applicants were not members of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

6. The Tribunal received an application for review on 5 December 2017, accompanied by a copy of the delegate’s decision. No further submissions were received.

7. On 2 May 2018, the Tribunal wrote to the applicants in accordance with s.359A of the Act, stating that the application for approval of the nominated position of Cook made by Tript Enterprises Pty Ltd was refused by a delegate of the Minister for Immigration, that the nominator had sought a review of that decision, but did not appear at the scheduled hearing (on 16 April 2018), and that on 1 May 2018, the Tribunal dismissed the nominator’s review application and affirmed the delegate’s decision to refuse the nomination. The letter stated that this information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicants’ visa application is the subject of an approved nomination, and noted that if the Tribunal relied on that information in making its decision, it may find that the position specified in the applicants’ visa application is not the subject of an approved nomination. The Tribunal invited the applicants to give comments on or respond to this information by 16 May 2018.

8. On 15 May 2018, the applicant wrote to the Tribunal stating that she wished to provide verbal evidence to the Tribunal and attend a hearing.

9. The applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments. 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 there is an approved nomination.

    Nomination of a position

12. 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).

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. At the hearing, the applicant gave evidence that she learned that the owner of Tript Enterprises Pty Ltd, who lodged the nomination application, had sold his business earlier this year.  The applicant stated that she had worked for Tript Enterprises Pty Ltd since December 2015, and that she took one week of leave during that time where she gave birth to her second daughter.  She returned to work for the next 6 months, but had to stop working in December 2017 because her mother in law was returning to India and was not able to continue caring for her baby.  The applicant gave evidence that after she stopped work, the owner of Tript Enterprises Pty Ltd renovated the restaurant and sold it.  She stated that she has not been in regular communication with the owner since she stopped working in December 2017.

15. The applicant told the Tribunal that recently, she has been able to secure new employment based in Endeavour Hills, and asked if it was possible to count her new employment towards her visa application.  The Tribunal informed the applicant that applications under Subclass 187 are tied to the nomination made by the applicant’s employer and that new employment cannot be substituted.  This is discussed further below.  Further, the Tribunal explained that the applicant had applied for a visa to work in regional Australia, and that Endeavour Hills was part of metropolitan Melbourne.  The applicant stated that she understood that the Tribunal would not be able to substitute a nomination application from a new employer in relation to this visa application.

16. The Tribunal finds that the applicant cannot satisfy cl.187.233 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination. On 1 May 2018, the Tribunal affirmed the decision of the delegate to refuse the nomination by Tript Enterprises Pty Ltd because the representative of Tript Enterprises Pty Ltd did not attend the scheduled hearing nor request a reinstatement of the matter after the matter was initially dismissed by the Tribunal. Further, at the hearing, the applicant gave evidence that Tript Enterprises Pty Ltd is no longer operating the business at which she worked.

17. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

18. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.187.233 in relation to her application.  The nomination by Tript Enterprises Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

19. Therefore, cl.187.233is not met.

20. 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.

21. Further, because the applicant is unable to satisfy cl.187.233, the secondary applicants are unable to satisfy cl.187.311(a) because they are not members of a family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  Therefore, the decision under review in relation to the secondary applicants must be affirmed.

    DECISION

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

    Mary Sheargold
    Member