Kaur (Migration)

[2021] AATA 5595

Kaur (Migration) [2021] AATA 5595 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manpreet Kaur
Mr Damanjot Singh Kunner
Mr Gurvinder Singh Kunner

CASE NUMBER:  1834831

HOME AFFAIRS REFERENCE(S):          BCC2017/2266707

MEMBER:De-Anne Kelly

DATE:25 October 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 25 October 2021 at 1:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – related nomination application refused – nominating company deregistered – no jurisdiction to review nomination refusal – not possible to link new position nomination to existing visa application – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 187.311

CASE
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 27 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.

5. 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 employer nomination by Anita and Company Pty Ltd was refused being the application referred to in cl.187.233(1).

6. The applicants appeared before the Tribunal on 7 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

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

   Section 359AA of the Act

9. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

10. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    Interpretation

11. During the hearing, the Tribunal asked the applicant if the interpretation was clearly understood and she indicated that it was. It was noted that the applicant responded in English during the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets cl.187.233(3) which provides as follows;

    (3)      The Minister has approved the nomination.

    Nomination of a position

13. 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.

14. 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.

15. The Tribunal advised the applicant that the visa application was entirely dependent on the outcome of the employer nomination review and she agreed that this was the case.

16. Under s359AA of the Act the Tribunal advised that on 27 January 2017 the employer Anita & Company Pty Ltd lodged an employer nomination in favour of Ms Manpreet Kaur however a delegate of the Minister refused this application and the nominator applied to the Tribunal for a review of the decision.

17. The company Anita and Company Pty Ltd was deregistered on 9 April 2021 and as such the Tribunal found on 13 September 2021 that it has no jurisdiction to hear the employer nomination review and as such there is no approved employer nomination cl.187.233(3). The Tribunal advised that it may have to refuse the secondary applicants visa application as well. The applicant was aware of the troubles affecting the nominator.

18. Ms Kaur asked for time to find a new nominator.  The Tribunal advised it could provide 14 days and explained that they had applied three (3) and a half years ago so must move forward with a decision. The applicant requested the 14 days extension and was advised she could make written submissions in that time.

19. The applicant wanted to link a new employer nomination to the existing visa application however the Tribunal explained that the Courts had found that these employer nomination applications are “once off”. The Tribunal relied upon Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (14 July 2017) by Judges Jagot, Bromberg and Mortimer JJ.

    89. The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh  at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]- [27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
    90. The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

20. The applicant asked for advice on her options and the Tribunal while sympathetic to the applicant’s concern advised that it is unable to provide migration advice. The Tribunal advised that unfortunately there are no prospects of success with this application and gave a further 14 days for further information to be submitted or 21 October 2021.

21. There have been no further submissions from the applicant nor request for an extension of time. The Tribunal finds that is no approved employer nomination and as such the application does not satisfy cl.187.233(3).

22. Therefore, cl 187.233 is not met.

23. 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.

24. Mr Damanjot Singh Kunner and Mr Gurvinder Singh Kunner were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

25. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

26. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicants a subclass 187 visa.

    decision

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

    De-Anne Kelly
    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.