Kaur (Migration)

[2022] AATA 905

Kaur (Migration) [2022] AATA 905 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manpreet Kaur
Mr Simarjeet Singh Bajwa

REPRESENTATIVE:  Mr Dilpreet Singh (MARN: 0956305)

CASE NUMBER:  1836515

HOME AFFAIRS REFERENCE(S):          BCC2017/2968365

MEMBER:Justin Meyer

DATE:20 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 20 April 2022 at 9:19am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – café or restaurant manager – subject of approved position nomination – refusal of related nomination application affirmed on review – no substantive response to tribunal’s invitation to comment – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(2), (3)

CASE

Singh v MIBP [2017] FCAFC105

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 August 2017. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cafe or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl187.233(2) of Schedule 2 to the Regulations because:

   “On 07 November 2018 the nomination lodged by DICKY BEACH SUPPORTERS CLUB
   INC referred to in paragraph 187.233(1), was refused by a delegate of the Minister for
   Immigration and Border Protection.
   On the same day, a natural justice letter on the associated visa application was issued
   inviting comment within 28 days. Departmental records indicate that there was no response
   within that timeframe.
   As the appointment has been refused, paragraph 187.233(2) is not met. As a result, the requirements of paragraph 187.233 have not been met.”

6. The applicants appeared before the Tribunal on 12 April 2022 to give evidence and present arguments.

7. The applicants were represented in relation to the review.

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 the existence of a valid nomination.  

   Nomination of a position

10. 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.

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 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.

12. The Tribunal notes the decision in Singh v MIBP [2017] FCAFC105 at [88] – [90] in which the Court held that the nomination relied to satisfy cl.187.223 must be the nomination which has been made at the time of visa application (judgment summary).

13. On 3 February 2022 the Tribunal wrote to the applicant in relation to the application for review made by him in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa to give evidence and present arguments relating to the issues arising in their case.

14. The applicant had previously provided a copy of the decision record to the Tribunal. The Tribunal is of the view the applicant was in receipt of written advice as to the nature of the issues under review and before the Tribunal for resolution.

15. The applicant did not respond to the Tribunal in a substantive way in writing on the presence of a nomination. The applicant did not provide any further information relevant to the existence of a nomination to the Tribunal that was not before the delegate. The Tribunal explained that it did not have a discretion in this matter.

16. In evidence the applicant advised the Tribunal she did not have a current nomination and could not provide a copy of a current nomination as the nomination had been refused by the department on 7 November 2018. It is shown in the Tribunals’ records that an application for review of that decision was refused by the Tribunal on 1 October 2021.

17. There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

18. Accordingly the requirements of cl.187.233 are not met.

    Secondary Applicants

19. The secondary applicants are member of the family unit of the applicant. As the secondary applicants are not member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of a visa, cl.187.311 is not satisfied.

20. As cl.500.311 is not satisfied by the secondary applicant, the Tribunal finds the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa are not satisfied. Therefore the Tribunal refused the application by the secondary applicant for a Regional Sponsored Migration Scheme (subclass 187) visa.

21. 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

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

    Justin Meyer
    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.