Kaur (Migration)

[2022] AATA 1220

Kaur (Migration) [2022] AATA 1220 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Manpreet Kaur
Mr Mandeep Singh
Miss Samreen Kaur Mahal

REPRESENTATIVE:  Mr Shoaib Vahora (MARN: 0848555)

CASE NUMBER:  1913101

HOME AFFAIRS REFERENCE(S):          BCC2017/1585127

MEMBER:Alison Mercer

DATE:18 March 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 18 March 2022 at 10:07am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination ­­– decision on the papers – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233

CASES
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 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 3 May 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 Office Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that the applicant was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, Falcon Financial Services Pty Ltd, had been refused by the Department, and therefore the applicant did not meet cl.187.233. She therefore did not meet the criteria for the Direct Entry stream and had not made any claims against the other streams. The delegate also refused to grant subclass 187 visas to the second and third named applicants (the applicant’s husband and daughter) on the basis that they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 26 May 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Shoaib Vahora, as their representative and authorised recipient for correspondence.

7. On 22 February 2022, the Tribunal wrote to the applicants via their agent, to invite them to comment or provide a response to information held by the Tribunal, pursuant to s.359A of the Act. The Tribunal advised that In conducting its review, it was required to formally invite them to comment or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason (or part of the reason) for affirming the decisions under review.

8. The Tribunal advised that the particulars of the potentially adverse information that affected their case were as follows:

   • at the time the applicant made her visa application on 3 May 2017, she was nominated by her employer, Falcon Financial Services Pty Ltd, as an Office Manager and the second and third named applicants were included as  members of her family unit;
   • the Department rejected this application on 18 May 2019 because the delegate found that the applicant 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 Office Manager had been rejected by the Department on 10 April 2019;
   • the delegate refused to grant the second and third named applicants subclass 187 visas as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 187 visa;
   • the applicants applied to the Tribunal on 26 May 2019 for review of the Department’s decision to reject their subclass 187 visa applications;
   • the Tribunal’s records indicated that Falcon Financial Services Pty Ltd lodged an application for review of the decision to refuse its nomination with the Tribunal but that on 1 February 2022, the Tribunal affirmed the Department’s decision not to approve the company’s nomination of the applicant; and
   • accordingly, there was currently no approved nomination of the applicant by Falcon Financial Services Pty Ltd 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 their comments or response, it indicated that:

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

10. The Tribunal further noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.187.233 in respect of a subclass 187 visa application lodged prior to 18 March 2018.

11. The Tribunal requested that the applicants provide a response or comments (or seek an extension to do so) by 8 March 2022, noting that a failure to do so would result in then losing their entitlement to a Tribunal hearing, and that the Tribunal might proceed to make its decision on the available evidence.

12. On 7 March 2022, the applicants’ agent provided the following response by email:

    I am writing to inform you that the applicant has advised us to receive the decision of AAT. We request the member to send the decision of the sc187 visa review application to our email address.

13. On 8 March 2022, the Tribunal wrote to the agent asking him to have the applicants confirm that they waived their right to a hearing and wished the Tribunal to proceed to make a decision on the papers.

14. On 12 March 2022, the Tribunal received a signed statement from the applicant confirming the above. At the request of the Presiding Member, a Tribunal officer telephoned the applicant to confirm this, and the applicant did so.

15. Accordingly, and as authorised by s.360(2)(b) of the Act, the Tribunal has proceeded to make its decision on the available evidence without holding a hearing in this matter.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

17. 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.

18. 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.

19. It is not disputed that at the time of the delegate’s decision, the applicant was not the subject of an approved nomination, as the Department had earlier refused to approve the nomination of her made by her employer, Falcon Financial Services Pty Ltd.

20. Subsequently, as set out in the Tribunal’s s.359A letter to the applicants, Falcon Financial Services Pty Ltd sought review of the nomination refusal decision with the Tribunal, and on 1 February 2022, the Tribunal affirmed the Department’s decision not to approve the company’s nomination of the applicant. Accordingly, there is currently no approved nomination of the applicant by Falcon Financial Services Pty Ltd and the decision to refuse the nomination is not under review by the Tribunal.

21. As flagged in the Tribunal’s s.359A letter, it is the view of the Tribunal that a new nomination by Falcon Financial Services Pty Ltd, or any other employer, would not satisfy cl.187.233, for the following reasons.

22. The Tribunal notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

23. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. 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.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that 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 to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

24. Although the Court’s comments were, strictly speaking, obiter, they are nonetheless persuasive in relation to subclass 187 visas in both the TRT and DE streams. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.187.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending. There is no longer a nomination review pending in this case.

25. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which 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. Accordingly, the Tribunal finds that the applicant cannot meet cl.187.233(3) and thus cannot meet cl.187.233 as a whole.

27. 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 to refuse the applicant a subclass 187 visa must be affirmed.

28. The Tribunal must also affirm the decisions to refuse the second and third named applicants subclass 187 visas, as it finds that they do not meet the secondary visa criteria in cl.187.311 to be members of the family unit of a person who holds a subclass 187 visa, and there is no evidence before the Tribunal to indicate that they meet the primary visa criteria in their own right.

    DECISION

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

    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

    (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.