Kaur (Migration)

[2018] AATA 1021

Kaur (Migration) [2018] AATA 1021 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Navdeep Kaur
Mr Sukhbir Singh
Master Ekamvir Dosanjh

CASE NUMBER:  1700388

DIBP REFERENCE(S):  BCC2016/620096

MEMBER:Stavros Georgiadis

DATE:15 March 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 15 March 2018 at 5:50pm

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19(4)(a)(ii), 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 12 February 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 (ANZSCO 351411). 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 as the position to which the visa application relates, had not been approved and therefore, did not satisfy an essential criterion (cl.187.233(3)). The second and third named applicants (as members of the family unit of the first named applicant), did not meet cl.187.311(a) and thus cl.187.311 of Schedule 2 to the Regulations because the applicant had not met the prescribed criteria for a subclass 187 (Regional Sponsored Migration Scheme) visa.

6. The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Birendra Singh, Director of the sponsoring employer, LAXMIS TANDOORI INDIAN RESTAURANT PTY LTD ATF LAXMIS TANDOORI INDIAN RESTAURANT UNIT TRUST in the related matter casefile 1620033.  The related matters were heard together.  

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet the requirements for the grant of the Subclass 187 visa relating to a nomination under the Direct Entry nomination stream set out in r.5.19(4).

   Nomination of a position

10. 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).

11. 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.

12. The applicant was nominated by LAXMIS TANDOORI INDIAN RESTAURANT PTY LTD ATF LAXMIS TANDOORI INDIAN RESTAURANT UNIT TRUST under sub-regulation 5.19(4) for the position of Cook (ANZSCO 351411). This is the employer nomination that was refused by the Department. 

13. On 15 March 2018 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19 in the related MRT case-file number 1620033 for the reasons set out in the Decision Record for that case refusing the nomination.

14. At the hearing, the Tribunal put to the applicant that without an approved nomination, the applicants would not meet necessary criteria to satisfy cl.187.233 (specifically cl.187.233(3)) for the grant of the visas and that the applications would, on that basis, be unsuccessful. The applicant responded and conveyed to the Tribunal that she understands and accepts that in such circumstances, it would not be open for the visa applications to be successful given an approved nomination is one of the essential requirements for the grant of the Subclass 187 visa.

15. Having considered the available evidence before it, the Tribunal is satisfied that the position of Cook ANZSCO 351411 is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that there is an approved nomination for the specified occupation in relation to the primary applicant. The Tribunal finds therefore, that cl.187.233(3) is not satisfied.

16. Accordingly, the requirements in cl.187.233 are not met.

17. 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 Tribunal must refuse the application by the applicant for a Subclass 187 (Regional Sponsored Migration Scheme) visa.

18. The second and third named applicants as members (spouse and son) of the applicant’s family unit who have made a combined application are not able to satisfy the requirements of cl.187.311 because the primary applicant is not the holder of a Subclass 187 visa.  Accordingly, the decision under review must be affirmed in respect of all applicants.

    DECISION

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

    Stavros Georgiadis
    Member