Khurana (Migration)

[2022] AATA 911

Khurana (Migration) [2022] AATA 911 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arwinder Singh Khurana
Mrs Pawanpreet Kaur
Master Dhanveer Singh

CASE NUMBER:  1916546

HOME AFFAIRS REFERENCE(S):          BCC2017/1362236

MEMBER:De-Anne Kelly

DATE:5 January 2022

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 05 January 2022 at 11:49am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook –no approved nomination –  tribunal affirmed nomination application – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951
Singh v Minister for Immigration and Border Protection [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 12 April 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 Mahabir Pty Ltd was refused being the application referred to in ch.187.233(1).

6. The applicants appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant responded to the hearing invitation by requesting that evidence be taken from another person although it was not clear on the hearing response who this individual was or how their evidence was material to the case. It transpired that this witness was the applicants spouse Ms Kaur.

7. The applicants were represented in relation to the review by Mr Nishan Singh MARN: 0955862 who did not attend the hearing.

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

   Interpretation

9. During the hearing the Tribunal asked the applicant if the interpretation was clearly understood. The applicant stated he fully understand and the “voice is all good”.

   Section 359AA of the Act

10. 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 and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicants satisfy cl187.233(3) which provides.

    (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 Mr Arwinder Singh Khurana under s359AA of the Act that on 19 November 2021, the Tribunal affirmed the decision to refuse the employer nomination by Mahabir Pty Ltd because the nominator did not satisfy reg. 5.19(4)(a)(ii) and reg. 5.19(4)(d) and as such there is no approved employer nomination to satisfy cl.187.233(3). The Tribunal advised that it may have to refuse the secondary applicants visa application as well.

16. The applicant responded in the hearing and stated that he was not aware that the employer nomination was refused and did not respond to the invitation in time and he was trying to look for a new employer. The applicant said he was living in Canberra now and will be able to find a new employer and will be able to work. As such he will start work in a regional area. He has two children, and his family are here, and he wants to stay in this country. His previous employer did not respond, and he was not aware of this and needs time from the Tribunal. The Tribunal advised that the review application was lodged in June 2019 so more than two (2) and half years in which he had the opportunity to look for a new employer and sponsor. The applicant advised that COVID-19 affected the hospitality sector and employers are reluctant to employ but he believes he can find a job in that time being by the 4 January 2022.  The spouse corroborated the evidence given by the applicant.

17. The Tribunal gave the applicant until 4 January 2022 to provide further information.

18. In the meantime, the applicant wrote to the Tribunal and asked advice on what documents he should provide. The Tribunal was mindful of Judge Egan remarks in DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951 (11 October 2019) at [5]   where his honour stated,

    The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:

19. As such, the Tribunal responded to the applicant and advised him it could not give advice on documents he should provide however he was at liberty to provide any information that he believed would assist this case.

20. On 4 January 2022, the applicant emailed the Tribunal saying his children were studying in Australia and wished to stay. The COVID-19 pandemic made secure work in hospitality very difficult however times are improving. The applicant states that he has found a new employer who is willing to give him full time work for three (3) years and he can provide the employment contract. A copy of a payslip for the applicant from an employer in Canberra was attached. It seems that applicant is under the impression that his visa application review can be linked to a new employer who has not lodged an employer nomination although that is the least of the obstacles this approach faces.

21. The Tribunal notes in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (14 July 2017) Judges Jagot, Bromberg and Mortimer JJ stated that an employer cannot file repeated nomination applications in relation to the same visa application and the same visa applicant.

    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.

22. As such, the Tribunal finds that the advice regarding a new employer for the applicant even if they were to lodge an employer nomination does not satisfy cl.187.233(3).

23. Therefore, cl 187.233 is not met.

24. 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.

25. Mrs Pawanpreet Kaur and Master Dhanveer Singh 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.

26. 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.

27. 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

28. 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.