Kaur (Migration)

[2022] AATA 4816

Kaur (Migration) [2022] AATA 4816 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sandeep Kaur

REPRESENTATIVE:  Mr Sobaran Singh (MARN: 9791702)

CASE NUMBER:  1916667

HOME AFFAIRS REFERENCE(S):          BCC2018/555062

MEMBER:Alison Mercer

DATE:9 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 9 November 2022 at 5:11pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook– applicants was no longer working for her original nominating employer –nomination remains refused – tribunal affirmed nomination application – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564
Singh v Minister for Immigration and Border Protection [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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 February 2018. 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 (Cth) (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, Gendhola Syam Preethi, was rejected by the Department on 16 May 2019. The delegate found that the applicant therefore did not meet the criteria for a subclass 187 visa in the Short Term stream and had not made claims to meet any other stream.

6. The Tribunal received a review application from the applicant on 25 June 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Sobaran Singh, as her representative and authorised recipient for correspondence.

7. On 7 September 2022, the Tribunal wrote to the applicant via her agent to invite he to attend a telephone hearing on 6 October 2022.

8. On 13 September 2022, the Tribunal wrote again to the applicant via her agent to invite her, pursuant to s.359A of the Act, to comment or respond to information held by the Tribunal that was potentially adverse to her case. Specifically, the Tribunal noted that:

   ·at the time the applicant made her visa application on 1 February 2018, she was nominated by her employer, Gendhola Syam Preethi, as a Cook;

   ·the Department rejected her application on 17 June 2019 because the delegate found that she did not meet cl.187.233 of Schedule 2 to the Migration Regulations as she was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of her for the occupation of Cook had been rejected by the Department on 16 May 2019;

   ·the Tribunal’s records indicated that Gendhola Syam Preethi lodged an application for review of the decision to refuse the nomination but that on 17 June 2022, the Tribunal affirmed the Department’s decision to refuse that decision; and

   • accordingly, there was currently no approved nomination of her by Gendhola Syam Preethi and the decision to refuse the nomination was not under review by the Tribunal.

9. The Tribunal advised that this information was relevant to the review because, subject to her comments or response, it indicated that:

   • she was not the subject of an approved appointment made by the same employer who nominated her, as required by cl.187.233 and that this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.187.233 at the time of decision; and
   • there is no evidence that she met the criteria in the Temporary Residence Transition or Labour Agreement streams of the subclass 187 visa.

10. The Tribunal requested that the applicant’s response or comments should be received by 27 September 2022.

11. On 23 September 2022, the applicant’s agent forwarded a scanned copy of a handwritten response by the applicant, in which she states:

    …

    I am writing in respond [sic] to your letter I received on 13 September 2022. As I don’t have any contact over my sponsor, it’s not in my control. I have my valid Certificates of Certificate III and Certificate IV in Hospitality and Diploma of Hospitality. I met my English score as well for my subclass 187 visa.

    …

12. The applicant appeared before the Tribunal on 6 October 2022 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

13. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

14. The applicant told the Tribunal that she was no longer working for her original nominating employer. She finished up with them around September 2019, after the nomination and visa applications were refused. The applicant said that she had found another job as a Cook with Tandoori Bistro restaurant in Perth, but had not talked to them about the possibility of them nominating her for another visa, as she had only been there about 6 months. In response to the Tribunal’s query, the applicant said that she worked at a petrol station in the interim.

15. The Tribunal noted that cl.187.233 did not contain any discretion to waive the requirement for her to have an approved nomination by her original employer, and she did not have one. The applicant responded that this was not within her control, and she had done everything from her side to ensure that her visa application was successful. She had the required qualifications and had always abided by her visa conditions and paid taxes when employed. She said that she would speak with her agent about what options (if any) she might have in the event that the Tribunal review application was unsuccessful.

16. The Tribunal indicated that it was likely to make its decision in 2 to 4 weeks, given its present workload.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Nomination of a position

18. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

19. 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 reg 1.13A and reg 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.

20. It is not disputed that although the applicant was nominated by her Australian employer, Ghendola Syam Preethi, for a subclass 187 visa, the nomination by her employer was refused by the Department on 16 May 2019, and that refusal decision was affirmed by the Tribunal (differently constituted) on 17 June 2022. This means that it is no longer under review by the Tribunal and the Department refusal decision still stands.

21. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by Ghendola Syam Preethi and thus cannot satisfy cl.187.233(3). She therefore cannot meet cl.187.233 as a whole.

22. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if she were, the Tribunal’s view is that this would not satisfy cl.187.233. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

23. The Tribunal considers that, although the Court's comments were strictly obiter, they are nonetheless persuasive in relation to subclass 186 and 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court's reasoning is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is withdrawn, the visa applicant will not meet cl.186.223, cl.186.233, cl.187.223 or cl.187.233 (as applicable).

24. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

25. In addition, the Tribunal notes that legislative changes took place on 18 March 2018 which also affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

26. Therefore, the Tribunal must find that cl.187.233 is not met, and that the applicant cannot be granted a subclass 187 visa in the DE stream. The applicant has only sought to satisfy the criteria for a subclass 187 visa in the DE 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 DE stream have not been met, the decision under review in relation to the applicant must be affirmed.

    decision

27. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Alison Mercer
    Member

    
    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (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.