KAUR (Migration)

[2023] AATA 4251

KAUR (Migration) [2023] AATA 4251 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs MANPREET KAUR
Miss EKAMDEEP KAUR
Mr NAVPREET SINGH

REPRESENTATIVE:  Mr NISHANT MALIK (MARN: 0640566)

CASE NUMBER:  1923984

HOME AFFAIRS REFERENCE(S):  BCC2017/2204168

MEMBER:Ian Berry

DATE:13 December 2023

PLACE OF DECISION:  Brisbane

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

The Tribunal recommends to the Minister, under section 351 of the Act, to intervene if it is appropriate to do so.

Statement made on 13 December 2023 at 8:59am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – café or restaurant manager – subject of approved position nomination – refusal of related nomination application affirmed in separate review – members of family unit – child an Australian citizen – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223(2)

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

2. The applicants applied for the visas on 22 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) (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 (applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223(2) of Schedule 2 to the Regulations because the applicant’s sponsor did not have its nomination approved.

6. The applicants appeared before the Tribunal on 2 March 2023 to give evidence and present arguments.  The hearing was held by Teams video.

7. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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 applicant satisfies the relevant Subclass 187 criterion.

   Nomination of a position

10. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·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 in regional Australia (as defined in reg 5.19).

    ·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 applicant’s visa is made by her as she was employed as the restaurant manager for her employer and sponsor Sardana Family Trust & K Sharma & Y Shelli (sponsor).

13. The sponsor’s nomination application was refused by the Tribunal on 11 October 2023, as it had satisfied the training benchmark criteria.

14. Without a sponsor’s approval the applicant’s visa cannot succeed for the reasons set out in this decision.

15. Therefore, cl 187.223 is not met.

16. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    Secondary Applicants

17. In respect of the other applicants, not including the primary applicant, (the secondary applicants) the Tribunal notes there is no information before it to suggest that secondary applicants meet the primary criteria for the grant of the visa. The secondary applicants applied for the visa because they were members of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicants, as they were members of the family unit of a person who did not satisfy the primary criteria for the visa.

    Tribunal’s recommendation for referral to the Minister under sec. 351

18. The child Miss Ekamdeep Kaur was born in 2009 and is an Australian citizen. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute Tribunal’s decision, for another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so. The Tribunal’s decision on the child will impact or her and her family. The affirmation of the nomination decision was without fault or default of the applicants.

19. The Tribunal recommends to the applicants to forward to the Minister an impact statement of other matters which will affect the family.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. The Tribunal recommends to the Minister, under section 351 of the Act, to intervene if it is appropriate to do so.

    Ian Berry
    Member

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)     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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.