Kaur (Migration)

[2022] AATA 5202

Kaur (Migration) [2022] AATA 5202 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Bhavneet Kaur
Mr Hardeep Singh
Master Manraj Singh

CASE NUMBER:  1835838

HOME AFFAIRS REFERENCE(S):          BCC2017/2112190 BCC20172112190

MEMBER:Karen McNamara

DATE:4 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 4 March at 1:08pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – occupation of Café or Restaurant Manager – no approved nomination – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 8 June 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 Mrs Bhavneet Kaur (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

5. The decision record provided to the Tribunal, records that the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required Mrs Bhavneet Kaur to be the subject of an approved nomination. The delegate found that the nomination lodged by A&P Investors Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 15 October 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Mr Hardeep Singh and third named applicant Master Manraj Singh could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants lodged an application for review with the Tribunal on 6 December 2018. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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.

13. On 14 February 2022, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 17 March 2022 at 10:00am.

14. On 15 February 2022, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

15. The information related to information before the Tribunal that shows on 31 August 2021, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to the first named applicant made by the nominating employer A&P Investors Pty Ltd.

16. The Tribunal’s letter of 15 February 2022 noted that this information is relevant because the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister (cl.187.233(3)). The letter further stated:

    ‘  If the Tribunal relies on this information, it may find that the nomination in relation to

    you has not been approved and consequently the decision under review would be
    affirmed.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 1 March 2022. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 1 March 2022, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 1 March 2022 and you must state
    the reason why the extension of time is required.
    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 14 February
    2022. Please note, however, that if you do not respond to this letter within the
    date specified or within any extended timeframe, you may lose your right to
    attend the scheduled hearing and it will be cancelled. The Tribunal may then
    proceed to make a decision on the review without taking any further action to
    obtain your views on the information.’

17. The invitation to comment/respond was sent to the applicants at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 1 March 2022, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ comments and the review applicants would lose any entitlement they may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

18. On 28 February 2022, the first named applicant by email advised the Tribunal the following:

    ‘Dear Officer

    Kindly make the decision as per the information provided at the time of Lodgement.

    Best Regards

    Bhavneet kaur’

19. In accordance with the applicant’s request, the Tribunal has resolved this matter on the papers.

20. On the evidence before it, The Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

21. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

22. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

23. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the second named applicant Mr Hardeep Singh and third named applicant Master Master Manraj Singh as a member of Mrs Bhavneet Kaur’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.187.311.

24. The applicants have 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

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

    Karen McNamara
    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.