Kaur (Migration)

[2021] AATA 4119

Kaur (Migration) [2021] AATA 4119 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jaspreet Kaur
Mr Manmohan Singh

CASE NUMBER:  1909070

HOME AFFAIRS REFERENCE(S):          BCC2018/980789

MEMBER:De-Anne Kelly

DATE:23 August 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 23 August 2021 at 8:15am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 1 March 2018. 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 Human Resources Manager.

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 A S RANDHAWA HOLDINGS PTY LTD ATF A S RANDHAWA INVESTMENTS TRUST, was refused by the delegate being the application referred to in cl 187.233(1).

6. The applicant appeared before the Tribunal on 7 January 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal reviews and the visa application refusal reviews for the following cases:

Employer nomination review	Visa application review	Nominee
1903700	1906067	Farheen Akhtar
1812372	1816511	Kajal
1832164	1836004	Manpreet Kaur
1832851	1835120	Lovepreet Kaur
1914270	1925075	Gurpreet Kaur
1906190	1909070	Jaspreet Kaur

1. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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

4. 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.

5. 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.

6. When the delegate of the Minister refused the employer nomination the employer lodged with the Tribunal a review application of the refusal decision. However, on 23 June 2021 the Tribunal affirmed the decision to refuse the employer nomination by A S Randhawa Holdings Pty Ltd ATF A S Randhawa Investments Trust

7. On 5 August 2021 the Tribunal emailed the applicant and invited them to comment on the fact the employer nomination refusal had been affirmed.

   Please note, however, that we have not made up our mind about the information.
   The particulars of the information are:
   On 23 June 2021, the Tribunal affirmed the decision not to grant an Employer

   Nomination lodged by A S Randhawa Holdings Pty Ltd as trustee for A S Randhawa Investments Trust. This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl. 187.233(1).

   If we rely on this information in making our decision, we may find that you do not meet
   cl. 187.233(3), which requires the nomination be approved, and affirm the decision
   under review.

   We may subsequently find that Mr Manmohan Singh does not
   meet the secondary visa criterion cl.187.311, which requires that each applicant be a
   member of the family unit of a person who satisfies the primary criteria for the grant of
   a visa and who holds a Subclass 187 visa, and affirm the decision under review in

   respect of their applications.

   You are invited to give comments on or respond to the above information in writing.
   Your comments or response should be received by 19 August 2021.

8. On 19 August 2021, the applicants emailed the Tribunal and advised that they did not wish to withdraw their applications. The Tribunal considers it is reasonable to make a decision on this case.

9. There is no approved employer nomination to satisfy cl.187.233(3) since the Tribunal affirmed the decision to refuse the employer nomination. As such, the Tribunal finds that cl.187.233(3) is not met.

10. Therefore, cl 187.233 is not met.

11. 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.

12. Mr Manmohan Singh was a secondary applicant 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 applicant on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicant 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.

13. The secondary applicant made a combined application with the primary applicant and applied as the partner and child and therefore as a member 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 applicant is a member of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicant therefore does not satisfy cl.187.311.

14. The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicant a subclass 187 visa.

    DECISION

15. 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

    (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.