Kaur (Migration)

[2018] AATA 2351

Kaur (Migration) [2018] AATA 2351 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jagwant Kaur
Mr Beant Singh
Miss Manvi Sandhu
Mr Guljinder Singh

CASE NUMBER:  1706452

DIBP REFERENCE(S):  BCC2016/1776452

MEMBER:Karen McNamara

DATE:24 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the first named applicant and the second named applicant Regional Employer Nomination (Permanent) (Class RN) visas.

The Tribunal does not have jurisdiction in this matter in relation to the third named and the fourth named applicant.

Statement made on 24 May 2018 at 9:56am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

Practice and Procedure – Requirement for applicants to be in the migration zone when the application is made – Third and fourth applicants not in migration zone at time of application – Tribunal has no jurisdiction in relation to the third and fourth applicants

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 347
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3)

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, dated 15 March 2017, to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act). The delegate refused the applications because the primary visa applicant, Mrs Jagwant Kaur, did not meet relevant criteria for grant of the visa. Mrs Kaur is the first named applicant in this review application. The delegate’s decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 29 March 2017.

   Jurisdiction in relation to the third named and the fourth named applicant.

3. For the following reasons, the Tribunal has no jurisdiction to review the decision in relation to the third named applicant and the fourth named applicant as the application was not made in accordance with the relevant legislation.

4. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act. The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

5. Department movement records show secondary applicants Miss Manvi Sandhu and           Mr Guljinder Singh were both off shore at the time the visa application was lodged on 18 May 2016, the time of the delegate’s decision on 15 March 2017 and the time of lodging an application for review with the Tribunal on 29 March 2017.

6. The Tribunal noted that the decision in relation to Miss Manvi Sandhu and Mr Guljinder Singh is reviewable under s.338(7A) of the Act as they were included in Mrs Kaur’s visa application but were offshore at the time the Subclass 187 visa application was lodged on 18^th May 2016. However, as they were not in the migration zone (essentially, Australia) both at the time of the delegate’s decision on 15 March 2017 and at the time of application for review to the Tribunal on 29 March 2017, Miss Manvi Sandhu and Mr Guljinder Singh do not meet the requirements of s.347(3A) of the Act and accordingly, the Tribunal does not have jurisdiction in relation to Miss Manvi Sandhu and Mr Guljinder Singh.

7. The Tribunal formed a preliminary view that the application for review made by Miss Manvi Sandhu and Mr Guljinder Singh was not a valid application since they were not in the Australia at the relevant time.  On 4 April 2018, the Tribunal wrote to Miss Manvi Sandhu and Mr Guljinder Singh inviting comments on the validity of their application for review.

8. On 18 April 2018, Mrs Kaur’s representative, Mr Jughar Singh Bajwa, responded via email, to the Tribunal’s letters of 4 April 2018, advising he had received a email from Mrs Jagwant Kaur stating “they want to attend the hearing and provide all the relevant verbal evidences (sic) in support of my case. I would request you to proceed on the request as this was the only information received by me from my clients side.”  The issue of the validity of the review applications of the third applicant and the fourth applicant was not addressed by the representative.

   Consideration of evidence

9. The Department’s movement records show that secondary applicants Miss Manvi Sandhu and Mr Guljinder Singh were not in Australia at the time of lodging the visa application on 18 May 2016, further they were not in Australia on the 15 March 2017 when the delegate made the decision to refuse their Subclass 187 visa application and they were not in Australia on 29 March 2017 when the application for review was made.

10. In the circumstances, the Tribunal finds that Miss Manvi Sandhu and Mr Guljinder Singh were not in the migration zone at the relevant time. As such, the application for review made by Miss Manvi Sandhu and Mr Guljinder Singh is not an application properly made under s.347 of the Act and it follows that the Tribunal does not have jurisdiction in this matter in relation to them.

    Consideration of evidence in relation to the first named applicant and second named applicant.

11. The applicants applied for the visas on 18 May 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

12. 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.

13. In the present case, Mrs Jagwant Kaur, the first named applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic ANZSCO 321211. 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.

14. The delegate refused to grant the visas because Mrs Kaur did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application lodged by KT Autocare Pty Ltd on 17 May 2016 for the position of Motor Mechanic , which relates to Mrs Kaur, was refused and as a result the delegate found Mrs Kaur did not meet cl.187.233(2) of Schedule 2 to the Regulations. The applicant lodged a review application with the Tribunal on 29 March 2017. A copy of the delegate’s decision was provided to the Tribunal.

15. On 4 April 2018 the Tribunal wrote (dispatched by email to the authorised recipient) to the applicants pursuant to s.359A of the Act and invited comments or response to certain information which the Tribunal considers would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review in relation to their applications. The particulars of the information being the Tribunal’s decision of the 22 March 2018, affirming the decision by a delegate of the Minister for Immigration and Border Protection to refuse the nomination application by KT Autocare Pty Ltd ( the nominator). This means that the nominator’s application for the nominated position has not been approved.

16. On 18 April 2018, the Tribunal received an email from Mrs Kaur’s representative, Mr Jughar Singh Bajwa, advising he had received a email from Mrs Jagwant Kaur stating “they want to attend the hearing and provide all the relevant verbal evidences (sic) in support of my case. I would request you to proceed on the request as this was the only information received by me from my clients side.” No further information or submission was provided on behalf of the applicants.

17. The Tribunal invited the applicants to give evidence and present arguments at a hearing on 10 May 2018.

18. The applicants’ representative advised the Tribunal by email on 7 May 2018 that he was no longer representing Mrs Jagwant Kaur and that Mrs Kaur had already responded to the Tribunal that she would attend the hearing without representation. Attached to this email was the completed “ Response to hearing invitation” signed by Mrs Jagwant  Kaur and Mr Beant Singh, dated  7 May 2018 noting the attendance for the hearing scheduled on 10 May 2018 by Mrs Jagwant Kaur and Mr Beant Singh.

19. The Tribunal contacted Mrs Kaur by phone on 7 May 2018 to advise that it required confirmation in writing from her stating that she has withdrawn her representation and also to provide her contact details in order for the Tribunal to send correspondence.  Mrs Kaur confirmed during this conversation that she would be attending the hearing.

20. A subsequent email was received by the Tribunal at 3.32pm on 7 May 2018 from Mrs Kaur advising Mr. Bajawa was no longer acting on her behalf and she provided her contact details.

21. The Tribunal’s invitation to the applicants to attend the hearing on the 10 May 2018, stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them reminders about the hearing 5 business days and one business day before the scheduled hearing.

22. The applicants did not appear before the Tribunal on the day and at the scheduled time and place. No explanation or medical evidence has since been provided to the Tribunal regarding why the applicants did not appear before the Tribunal as scheduled.

23. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s.379A(5) and that two separate SMS reminders were also sent to the applicants about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

24. For the following reasons, the Tribunal has concluded that the decision under review in regard to the first named applicant and second named applicant should be affirmed.

25. As noted above the Tribunal does not have jurisdiction to review the decision under review in regard to the third named applicant and fourth named applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in the present case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purpose of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

27. 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.

28. 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.

29. As indicated in the delegate’s decision, a copy which was provided to the Tribunal, the application for approval of the nominated positon of Motor Mechanic in respect of Mrs Kaur made by KT Autocare Pty Ltd, was refused by the Department on the 15 March 2017. On review the Tribunal affirmed this decision on 22 March 2018.

30. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore Mrs Kaur does not meet cl.187.233(3) of Schedule 2 to the Regulations.

31. Accordingly, the Tribunal finds that the applicant does not meet the requirements of cl.187.233 of Schedule 2 to the Regulations.

32. Mrs Kaur 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.

33. Based on documentation in the Department’s file, Mr Singh was included as secondary applicant on the basis of being a family member in respect of Mrs Kaur’s Subclass 187 visa application. Clause 187.311 of Schedule 2 to the Regulations requires that, as a secondary applicant, to be granted the visa, Mr Singh must be a member of the family unit of a person who holds a Subclass 187 visa. As noted above, the Tribunal found that the primary applicant, Mrs Kaur did not satisfy the requirements for the granting of a Subclass 187 visa.

34. Accordingly the Tribunal finds that Mr Beant Singh is not a member of the family unit of a person who holds a Subclass 187 visa. Therefore the Tribunal finds that Mr Beant Singh does not meet cl.187.311 of Schedule 2 of the Regulations.

    DECISION

35. The Tribunal affirms the decisions not to grant the first named applicant and the second named applicant Regional Employer Nomination (Permanent) (Class RN) visas.

36. The Tribunal does not have jurisdiction in this matter in relation to the third named applicant and the fourth named applicant.

    Karen McNamara
    Member