KAUR (Migration)

[2017] AATA 1895

KAUR (Migration) [2017] AATA 1895 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kuldeep Kaur
Master Jorawar Singh
Mr Gurwinder Singh Singh

CASE NUMBER:  1702211

DIBP REFERENCE(S):  BCC2016/889239

MEMBER:Katie Malyon

DATE:13 October 2017

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction in relation to the second named applicant.

Statement made on 13 October 2017 at 5:18 pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Sponsorship Bar – No authorised nomination – Migration zone

LEGISLATION

Migration Act 1958, ss 65, 114C, 140O, 338, 347, 351

Migration Regulations 1994, Schedule 2, r 5.19, cl 187.223

CASES

Hasan v MIBP [2016] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2016] FCCA 2229
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 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 to the Department of Immigration for the visas on 3 March 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.

4. In the present case, Mrs Kuldeep Kaur (the first named applicant), is seeking the visa in Temporary Residence Transition stream to work in the nominated position of Cafe or Restaurant Manager ANZSCO 141111.  This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past 2 years and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because Mrs Kaur did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination application lodged by Alice Food Concepts Pty Ltd (Alice Food Concepts) on 3 March 2016 for the position of Cafe or Restaurant Manager which relates to Mrs Kaur was refused and, as a result, Mrs Kaur did not meet cl.187.223(2) of Schedule 2 to the Regulations. A copy of the delegate's decision was provided to the Tribunal.

6. The applicants were initially invited to attend a hearing on 11 September 2017.  However, Mrs Kaur provided a Medical Certificate from her Doctor and so the Tribunal rescheduled the hearing.  Mrs Kaur appeared before the Tribunal on 10 October 2017 by teleconference from Alice Springs to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages although the Tribunal notes that Mrs Kaur only used the interpreter to clarify an occasional technical aspect of the law.  The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing by teleconference from Adelaide.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in Mrs Kaur’s case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.223 of Schedule 2 to the Regulations.

   Nomination of a position

9. For applicants in the Temporary Residence Transition stream, cl.187.223 of Schedule 2 to the Regulations requires that the position to which the visa application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination for a position in regional Australia). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations which was required to be made as part of the current Subclass 187 visa application. The provisions of cl.187.223 of Schedule 2 to the Regulations are extracted in the Attachment to this decision.

10. In addition, this criterion also requires that:

    ·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 of the Regulations), or it is reasonable to disregard any such information;

    ·the position is located in ‘regional Australia’ as defined in r.5.19(7) of the Regulations;

    ·the position is still available to the visa applicant; and,

    ·the visa application was made no more than 6 months after the nomination of the position was approved.

11. As indicated in the delegate's decision, a copy of which was provided to the Tribunal, the application for approval of the nominated position of Cafe or Restaurant Manager in respect of Mrs Kaur made by Alice Food Concepts was refused by the Department on 26 November 2016. 

    Hearing

12. At the commencement of the hearing, the Tribunal identified that the issue in this review is whether there is an approved nomination for the purposes of cl.187.223 of Schedule 2 to the Regulations and it explained the requirements of this provision. It also observed that, in the recent Full Federal Court of Australia decision in Singh v MIBP,[1] the Court held that the words in cl.187.233 of Schedule 2 to the Regulations (which are similarly worded to the provisions in cl.187.223 of Schedule 2 to the Regulations, the provisions which are relevant to Mrs Kaur) refer to a factual event, namely, whether an employer nomination had been made and about which the applicant had made the required declaration in their visa application. As explained by Mortimer J, it is a “once off” process.[2]  The Court observed that even a nomination in respect of the same position made by the same employer could not be relied upon to meet these Schedule 2 criteria because the new nomination would not be the one in relation to which the declaration in the applicant’s visa application was made (emphasis added). The Tribunal also noted that it has no discretion and must apply the law.

    [1] [2017] FCAFC 105. See also Kaur v MIBP [2017] FCCA 564; Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2016] FCCA 2229.

    [2] [2017] FCAFC 105, Mortimer J at [90].

13. Mrs Kaur told the Tribunal she was not really aware of the impact of the requirements in cl.187.223 of Schedule 2 to the Regulations for an approved nomination and asked the Tribunal to take evidence from her representative as he was authorised to speak on her behalf. Mrs Kaur’s representative told the Tribunal that no review had been sought of the Department’s refusal of Alice Food Concepts’ nomination application because, following a routine monitoring undertaken by the Department, Alice Food Concepts was barred from sponsoring or nominating further visa applicants for a period. Subsequently, the business applied for a waiver of the bar to the sanction under s.140O of the Act but this was unsuccessful. Mrs Kaur’s representative added that, thereafter, a subsequent nomination by Alice Food Concepts in respect of Mrs Kaur was lodged but, as at the time of the Tribunal’s hearing, that new application remains pending. Her representative told the Tribunal that, in the circumstances, the whole point of coming to the Tribunal was so that his client could access s.351 of the Act and make application to the Minister for Immigration for his personal intervention in the matter.

14. After the hearing, Mrs Kaur’s representative provided the Tribunal with a letter confirming his instructions to assist with an application to the Minister due to the ‘immense harm to business in Alice Springs and the Northern Territory’ that would result if the Tribunal affirms the Department’s decision to refuse Mrs Kaur’s Subclass 187 visa application.  No evidence was provided in support of this claim. 

15. The representative also states that Mrs Kaur’s visa application was refused on the basis that her application was ‘invalid because there was no authorised/certified nomination attached to the application’.  However, the Tribunal notes this statement is inconsistent with the delegate’s decision which expressly states that Mrs Kaur’s visa application was refused because the nomination application lodged by Alice Food Concepts was refused.  The Tribunal also notes that Mrs Kaur’s visa application provides details of the related nomination lodged in connection with her Subclass 187 visa and quotes a Transaction Reference Number for that nomination.  Furthermore, in her Application for Permanent Employer Sponsored or Nominated Visa in the Department’s file, Mrs Kaur affirmatively declared that:

    “the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection.  (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection).”

16. In his letter to the Tribunal forwarded after the hearing, Mrs Kaur’s representative also states that Alice Food Concepts was issued with a ban (nominating or sponsoring further visa applications) for a period of 18 months and, although the decision was challenged ’through the auspices of the Delegate’, it was later upheld ‘despite a rigorous challenge’ which ‘still continues’.  However, as indicated by the representative at the hearing, Alice Food Concepts did not seek review in the Tribunal of the Department’s refusal of the nomination in respect of Mrs Kaur (that was the subject of her declaration in her visa application) and which was refused by the Department on 28 November 2016.

17. 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.187.223(2) of Schedule 2 to the Regulations. Accordingly, cl.187.223 is not met.

18. Mrs Kaur has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition stream.  No claims have been made by her in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review in relation to Mrs Kaur must be affirmed.

19. There is no evidence before the Tribunal to indicate that the third named applicant, Mrs Kaur’s husband Mr Gurwinder Singh Singh, meets the primary requirements for grant of the visa.

    Jurisdiction in relation to the second named applicant

20. During the course of the hearing, the Tribunal opined that it does not have jurisdiction in relation to the second named applicant, Mrs Kaur’s 2½ year old son Jorawar Singh. 

21. The Tribunal noted that the decision in relation to Jorawar Singh is reviewable under s.338(7A) of the Act as he was included in Mrs Kaur’s visa application but was offshore at the time the Subclass 187 visa application was lodged on 3 March 2016. However, as he was not in the migration zone (essentially, Australia) both at the time of the delegate’s decision on 18 January 2017 and at the time of application for review to the Tribunal on 8 February 2017 Jorawar Singh does not meet the requirements of s.347(3A) of the Act and, accordingly, the Tribunal does not have jurisdiction in relation to him. Mrs Kaur told the Tribunal she returned her young son to India over this period so that he could be looked after by his grandparents.

22. The Tribunal explained the jurisdictional issue to Mrs Kaur and her representative in relation to Jorawar Singh.  They indicated their acknowledgement of the Tribunal’s position in this regard.

    Is this an appropriate case to refer to the Minister?

23. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision that is more favourable to an applicant if the Minister thinks it is in the public interest to do so. The Tribunal notes that there is no statutory obligation to consider whether matters should be referred to the Minister for his consideration under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by an applicant or another person, or in any other circumstances.

24. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising his public interest powers in cases which are referred to the Department by the Tribunal or which exhibit one or more unique or exceptional circumstances.

25. Mrs Kaur’s representative told the Tribunal that the whole point of coming to the Tribunal was so that his client could access s.351 of the Act and make application to the Minister for his personal intervention in this matter. In the circumstances, the Tribunal is satisfied that, if Mrs Kaur chooses to approach the Minister, she is in a position to secure professional advice from her representative who could assist her with this process and document her case.

    DECISION

26. The Tribunal affirms the decision not to grant the first named applicant and the third named applicant Regional Employer Nomination (Permanent) (Class RN) visas.

27. The Tribunal has no jurisdiction in relation to the second named applicant.

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Schedule 2

    Part 187

    …

    187.223 

    (1) The position to which the application relates is the position:

    (a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b) in relation to which the applicant is identified as the holder of a Subclass 457 visa (Temporary Work (Skilled)) visa; and

    (c) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1
              was made in the application for the grant of the visa.

    (2) The Minister has approved the nomination.

    (3) The nomination has not subsequently been withdrawn.

    (3A) Either:

    (a) there is no adverse information known to Immigration about the person who made the     nomination or a person associated with that person; or

    (b) it is reasonable to disregard any adverse information known to Immigration about the      person who made the nomination or a person associated with that person.

    (4) The position to which the application relates is located in regional Australia.

    (5) The position is still available to the applicant.

    (6) The application for the visa is made no more than 6 months after the Minister approved the nomination.

    oOOo