Kaur (Migration)

[2016] AATA 4899

Kaur (Migration) [2016] AATA 4899 (5 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sharnjit Kaur

CASE NUMBER:  1600864

DIBP REFERENCE(S):  BCC2015/1704341

MEMBER:Christopher Smolicz

DATE:5 December 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 05 December 2016 at 9:50am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – Nominated position of Retail Manager (General) – Nominated position no longer available – No responds to Tribunal correspondence – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359, 360
Migration Regulations 1994 (Cth) 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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 15 June 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General).

5. 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.

6. The delegate refused to grant the visa because the applicant did not meet cl.187.233(5) of Schedule 2 to the Regulations because the nominated position was no longer available.

7. On 26 January 2016 the applicant applied to the Tribunal to review the delegate’s decision. A copy of the delegate’s decision was provided to the Tribunal with the review application.

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 position to which the application relates has been approved.

   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.

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 position to which this application relates is the position of Retail Manager (General) working for the applicant’s sponsoring employer Ishaan Company Pty Ltd.

13. On 11 December 2015 the applicant’s sponsoring employer advised the Department that the nominated position is no longer available. The Department wrote to the applicant seeking her comment to this information. The applicant did not respond to the Department’s letter.

14. On 20 January 2016 the nomination application made by the sponsoring employer was refused by the delegate.

15. On 8 November 2016 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information of an approved nomination that has not been withdrawn and was still available. The applicant did not respond to the letter.

16. The invitation advised the applicant that if the information was not provided in writing by 22 November 2016 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

17. As the applicant has not provided the information within the prescribed period, and no extension has been sought or granted, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The Tribunal has proceeded to decision without taking any further steps to obtain the information, as it is evident the information cannot be provided.

18. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is no longer available to the applicant. The Tribunal finds the applicant is unable to satisfy 187.233(5).

19. Therefore, cl.187.233 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.

    DECISION

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

    Christopher Smolicz
    Member