KAUR (Migration)

[2018] AATA 1882

KAUR (Migration) [2018] AATA 1882 (26 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms PARWINDER KAUR
Mr HARJIT SINGH
Miss HARNOOR KAUR

CASE NUMBER:  1604862

DIBP REFERENCE(S):  BCC2015/2135579

MEMBER:Hugh Sanderson

DATE:26 March 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 26 March 2018 at 10:18am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) –Subclass 187 – Direct Entry Nomination stream – nurseryperson – cl.187.233 – Not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 5.19, Schedule 2, cl 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 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 26 July 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 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 nurseryperson. 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. 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 application of the applicant’s sponsor, K Kaur and M Singh, had been refused and therefore the applicant was not the subject of an approved nomination.

   Background

6. The applicant applied for the visa on the basis of a sponsorship by K Kaur and M Singh in the position of a nurseryperson. The second named applicants are her husband and child and have applied for the visa on the basis of being members of her family unit.

7. The Department refused the nomination application of K Kaur and M Singh on 19 February 2016. The applicant was advised of this information. As the nomination application was refused the Department found that the position to which the application related was not a position where the Minister had approved the nomination. Accordingly, the delegate found the applicant did not meet cl.187.223 and refused the application.

8. Both the applicant and the sponsor applied to the Tribunal for a review of the decision to refuse the nomination application and the visa application.

9. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from K Kaur and M Singh.

10. On 8 March 2018 the Tribunal affirmed the Department’s decision to refuse the approval of the nomination under r.5.19 made by K Kaur and M Singh of the applicant. At the time of this decision, no appeal has been lodged in respect of that decision.

11. The Tribunal wrote to the applicant on 9 March 2018 pursuant to s.359A of the Act noting that the Tribunal had affirmed the Department’s decision to refuse the approval of the nomination of the applicant by K Kaur and M Singh and that the applicant was not subject of a current approved relevant nomination. The applicant was invited to comment on or respond to this information. She was required to comment on or respond to this information by 23 March 2018.

12. The applicant responded on 23 March 2018 stating that the sponsor was considering lodging a judicial review of the decision to refuse the nomination application. She stated that she wanted the Tribunal not to make any decision until the judicial outcome of the nomination was finalised.

13. The Tribunal has considered whether it should delay in making a decision in this case. At the time of the decision the applicant is not subject to any approved nomination. The Tribunal has made a decision in the application of the applicant sponsor, K Kaur and M Singh, to affirm the decision refusing the nomination application. No appeal has been lodged at this time in respect of that decision. The Tribunal is not required to indefinitely defer its decision-making process. The applicant has had an opportunity to address the issues that were identified in the Department’s decision for the reason why she did not meet the criteria for the grant of the visa. The applicant has attended a hearing where the issues of why she did not meet the criteria have been addressed.

14. The Tribunal finds that it is not appropriate to postpone the making of a decision any further and is now required to make a decision based on the information currently before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the Minister has approved the nomination of the applicant.

    Nomination of a position

17. 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).

18. The Department issued a decision on 19 February 2016 refusing the nomination application of the applicant sponsor, K Kaur and M Singh. A review of that decision before the Tribunal has been finalised with the decision of the Department to refuse that nomination application being affirmed. Accordingly, the applicant is not subject to any approved nomination or any nomination application.

19. As the applicant is not the subject of an approved nomination, cl.187.233(2) is 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. As the primary visa applicant does not meet the criteria for the grant of the visa, the second named applicants are not members of the family unit of a person who meets the primary criteria. Accordingly, the decisions to refuse their applications must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member