Kaur (Migration)

[2021] AATA 5582

Kaur (Migration) [2021] AATA 5582 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ranbir Kaur
Mr Jaspreet Singh Bhangu
Mr Parteek Singh Bhangu

CASE NUMBER:  1830736

HOME AFFAIRS REFERENCE(S):          BCC2016/3553762

MEMBER:Amanda Ducrou

DATE:19 August 2021

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 19 August 2021 at 11:37pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
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 (the Act).

2. The applicants applied for the visas on 25 October 2016. 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 (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 Cafe or Restaurant Manager (ANZSCO 141111).

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 related nomination application lodged by the nominator, Stewarts @ Brookleigh Pty Ltd, being the nomination referred to in cl 187.233(1), was refused by a delegate of the Minister on 5 September 2018 and, as such, there was no approved nomination.

6. The Tribunal received an application for review from the applicants on 19 October 2018. The Tribunal received documents with the application for review including a copy of the delegate’s decision.

7. On 7 October 2020, the Tribunal wrote to the applicants inviting them to appear before the Tribunal on 16 November 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The letter was sent by email to the applicants at the email address provided in connection with the review. The Tribunal received the applicants’ response to the hearing invitation on 4 November 2020 which confirmed that they would take part in the hearing scheduled for 16 November 2020.

8. The applicants appeared before the Tribunal on 16 November 2020 to give evidence and present arguments. At the hearing, the Tribunal received oral evidence and oral submissions from Mrs Kaur. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams audio. The hearing was held during the COVID‑19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone via MS Teams audio, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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 there is an approved nomination.

11. At the hearing, Mrs Kaur confirmed that she had read the delegate’s decision record and that she understands that the delegate made the decision to refuse to grant the visas because the employer’s nomination application was refused.

12. The Tribunal put information to the applicants, pursuant to s 359AA of the Act, that the nominator had sought review by the Tribunal of the decision made by the delegate to refuse the nomination application made by Stewarts @ Brookleigh Pty Ltd, but that on 11 November 2019 the Tribunal (differently constituted) made a decision that the Tribunal does not have jurisdiction to review the nomination refusal, because the nominating business had been deregistered and had ceased to exist as a legal entity. The Tribunal’s letter to the applicant explained that this information is relevant and potentially adverse to the applicants’ case because, subject to their comments or response, if the Tribunal did accept the information as true, it would mean that the nominator’s application for the nominated position was not approved and there is no pending review before the Tribunal for review of the delegate’s decision to refuse the nomination application. The Tribunal explained that it is a requirement for the grant of the applicant’s Subclass 187 visa that the position specified in the visa application is the subject of an approved nomination and that this would mean that the applicant does not satisfy a requirement for the grant of the visa, and that this would be the reason, or a part of the reason, for affirming the decision under review made on 10 October 2018 to refuse to grant the applicant the Subclass 187 visa.

13. The Tribunal went on to explain that if the Tribunal were to find that the position specified in the applicant’s visa application is not the subject of an approved nomination, then this would also mean that the second named applicant and the third named applicant do not meet the requirements for the grant of the visas, as they would not be a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa as required by cl 187.311 of Schedule 2 to the Regulations and that this would be the reason, or a part of the reason, for affirming the decision under review not to grant the second and third named applicants Subclass 187 visas, as there is no evidence before the Tribunal that they meet the primary criteria for the visas in their own right.

14. The Tribunal informed the applicants that they did not need to comment on or respond to this information immediately and asked them if they wished to ask for additional time to comment or respond. The applicants elected to respond immediately and did not request further time to comment or respond. Mrs Kaur told the Tribunal that the nominator provided documents directly to its lawyer and that they did not have any idea that the nominator had been deregistered as a company.

15. Mrs Kaur pointed out that they have fulfilled all of the requirements that they must satisfy for the grant of the visas including the English language proficiency tests. Mrs Kaur emphasised that they have worked hard and paid taxes in Australia and that, as such, they have a good record in Australia. She asked the Tribunal to take into consideration that they have fulfilled all of the requirements and to give them a chance.

16. The documentary evidence is consistent with the oral evidence of Mrs Kaur. The Tribunal had no reason to doubt that the applicants have met other requirements for the grant of the visas and the Tribunal is satisfied that the evidence demonstrates that Mrs Kaur and the second named applicant have a history of employment in Australia. The Tribunal acknowledges that the circumstances that led to the refusal of the application for the nomination of the position linked to Mrs Kaur’s application for the Subclass 187 visa are entirely beyond the applicants’ control.

17. While the Tribunal appreciates and considers it understandable that the applicants are upset and extremely distressed by what has happened, it remains the case that the application for the nomination of the position related to Mrs Kaur’s Subclass 187 visa application has not been approved and no review is pending before the Tribunal of the decision to refuse the nomination application. This means that the matter has been finalised.

18. As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 187 visa under cl 187.233(3) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact. The Tribunal acknowledges that the refusal of the application for the visas has placed Mrs Kaur and her family in a most unfortunate position, which is not of their own making. However, the Tribunal has no discretion in relation to the requirement that the related nomination application be approved.

    Nomination of a position

19. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

20. 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 of the Regulations); 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.

21. In this case, the applicant applied for a Subclass 187 visa on the basis of the nomination lodged by Stewarts @ Brookleigh Pty Ltd, in respect of the applicant, being the nomination referred to in cl 187.233(1) of Schedule 2 to the Regulations. That nomination application was refused by a delegate of the Minister on 5 September 2018. As a consequence, on 10 October 2018 the applicant’s Subclass 187 visa was refused by the delegate on the basis that there is no approved nomination.

22. Stewarts @ Brookleigh Pty Ltd applied to the Tribunal for review of the decision made on 5 September 2018 to refuse the nomination application. However, on 11 November 2019, the Tribunal determined that it does not have jurisdiction to review the decision to refuse the nomination application, as the nominator had been deregistered and ceased to exist as a legal entity. This means that the matter has been finally determined and that there is no approved nomination as required under cl 187.233(3) of Schedule 2 to the Regulations. As a result, the requirement in cl 187.233(3) of Schedule 2 to the Regulations is not satisfied.

23. Therefore, cl 187.233 is not met.

24. The Tribunal finds that the second named applicant (the applicant’s partner) and the third named applicant (the applicant’s son) do not meet cl 187.311, which requires the second named applicant and the third named applicant to be a member of the family unit of a person who holds a Subclass 187 visa. There is no evidence before the Tribunal that establishes that the second named applicant and the third named applicant meet the primary visa criteria.

25. 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

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

    Amanda Ducrou
    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.