Kaur (Migration)

[2022] AATA 4860

Kaur (Migration) [2022] AATA 4860 (8 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Kaur
Mr Baljeet Singh

CASE NUMBER:  1905375

HOME AFFAIRS REFERENCE(S):          BCC2017/1479059

MEMBER:Alan McMurran

DATE:8 November 2022

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 08 November 2022 at 6:07pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Hairdresser – nomination application associated with the position was refused – tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 7 March 2019 for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mrs Amandeep Kaur, is a citizen of the Republic of India. The second named applicant, Mr Baljeet Singh, is her spouse, also a citizen of the Republic of India.

3. The applicants applied for the visas on 24 April 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. 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.

5. 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 Hairdresser

6. (ANZSCO 391111).

7. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination relied upon by the visa applicant was refused by the Department’s delegate, and the Minister has not approved the nomination.

8. On 20 September 2022, the Tribunal sent a letter to the applicants inviting them to respond to information that the nomination application had been refused, firstly by the Department, and then upon review by the Tribunal.[1] The applicants were asked to respond by 4 October 2022. The Tribunal letter contained a warning that if it did not receive comments or response by the due date, the applicant would lose any entitlement to appear to give evidence and present arguments at a hearing.

   [1] Tribunal case number 1901659

9. On 3 October 2022, the applicants responded with an email, referring to a hearing invitation for 8 November 2022 and stating: “Since we have received this notice we are trying to make a communication with the employer to get all the required documents. Unfortunately due to some personal issues and upcoming overseas trips he is unable to accommodate us in his busy time frame of 2 months approximately, he said. As we are definitely want to attend hearing to present ourselves so we are requesting you to kindly grant us extension to have a chance to meet employer according to his schedule and get all documents. We will be highly thankful to you for this kindness.”

10. On 5 October 2022, the Tribunal responded by email to the applicants, stating firstly that an extension of time was not warranted, and the hearing would continue as scheduled on 8 November 2022; and secondly, that the applicants were required to provide evidence of an approved nomination for the hearing.

11. On 6 October 2022, the Tribunal informed the applicant by email that as it had not received the required response by 4 October 2022, the scheduled hearing for 8 November 2022 was now cancelled and the applicants were not entitled to appear to give evidence and present arguments.

12. On 7 October 2022, the applicants responded stating they had received cancellation of the hearing “due to not writing us before 4 October”.

13. The applicants’ email went on to state: “Unfortunately your team didn’t approve our request and ask us to attend hearing on the same day which is in November. Also they advised us to provide documentation of approved nomination as well. Please have a look into this matter. Sorry for any inconvenience caused”.

14. On 7 October 2022, the applicant sent a further email to the Tribunal. The email refers to the Tribunal officer and states: “This email is regarding response I received yesterday which declares that my hearing has been cancelled and it alarmed me that something went wrong to my previously sending email
    As I explained to you in today phone conversation that there must be a technical error for not receiving that attachment. As per your request I have sent items too but it’s not showing that document. But to my understanding I uploaded it with my request for extension. MS Olivia C email so I discussed all my points with you on phone. I am resending that document and requesting you to consider it and allow us to have a chance to attend hearing. I’ll be thankful to you. Looking forward to hear from you. Pls see attached document”.

15. The document attached was the Tribunal’s form with a response to hearing invitation as to who would participate in the hearing. The response did not include the information sought in the Tribunal’s letter of 20 September 2022 or other information the applicants said was provided, and the applicants had not provided information concerning the refusal of the visa application and any related reasoning for their part, nor made any submissions concerning the delegate’s visa decision.

16. On 10 October 2022, the Tribunal sent a letter to the applicants. The Tribunal letter set out the chronology concerning the communications between the applicants and the Tribunal following the request under s.359 of the Act. The Tribunal letter confirmed that despite the applicants’ communications, the Tribunal had received no information or submissions as claimed. The Tribunal letter referred to s.360(3) of the Act and that as the time for providing the information had passed without a response to the requested information, the hearing remained cancelled.

17. The Tribunal indicated, however, that nonetheless it would delay making its decision until on or after 8 November 2022 so that any information the applicant sought to submit before then would be considered.

18. The Tribunal received no further communication from the applicants after 7 October 2022 and has delayed its decision until 8 November 2022. No submissions have been made concerning the Department decision to refuse the visa application because of the refusal of the nomination application, why that decision might be wrong, or what the applicants might expect the Tribunal to find in the circumstances, despite the opportunity extended for the applicants to provide such information and submissions.

19. The Tribunal has therefore proceeded to finalise the application for review on the basis of the available information as at 8 November 2022.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether the Minister has approved the nomination of the applicant as required by subregulation 187.233(3). The Tribunal has no discretion to waive the requirements.

    Nomination of a position

22. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision.

23. 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. Where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

24. 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.

25. The Tribunal has had regard to the information available from the Department file and the Tribunal file. That information discloses that the nomination lodged by the applicant’s nominator, Pukhraj Pty Ltd, for the nominated occupation of Hairdresser, was refused by the delegate on 8 January 2019. The nominator sought merits review of that decision in the Tribunal.

26. The Tribunal’s information confirms that on 8 December 2021, the Tribunal conducted its review of the nomination decision and decided to affirm the decision to refuse the nomination.[2]

    [2] Tribunal case number 1901659

27. There is no information before the Tribunal to show there is any further application underway for a court appeal in respect of the Tribunal decision and no information that there is any other application on foot either in relation to these proceedings or any further nomination or visa application for the applicant.

28. The Tribunal finds accordingly that there is no approved nomination by the Minister for the nominated occupation and in favour of the nominator for the visa applicant.

29. Therefore, cl 187.233 is not met.

    Summary

30. 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.

    Secondary applicant

31. Subregulation 187.311 specifies that as regards the secondary criteria, for applicants who are members of the family unit of a person who satisfies the primary criteria, the secondary applicant must be a member of the family unit of a person who holds a Subclass 187 visa.

32. The secondary applicant must also have made a combined application with the primary applicant.

33. As the secondary visa applicant is not a member of the family unit of a person holding a Subclass187 visa, granted on the basis of satisfying the primary criteria, subclause 187.311 is not met and the secondary applicant’s visa application cannot succeed.

    decision

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

    Alan McMurran
    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

    (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.