Kiran Pal Kaur (Migration)

[2020] AATA 1199

Kiran Pal Kaur (Migration) [2020] AATA 1199 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms  Kiran Pal Kaur
Mr Gurvindra SINGH
Master Karan Inder Singh Sekhon

CASE NUMBER:  1821870

HOME AFFAIRS REFERENCE(S):          BCC2016/3905819

MEMBER:Penelope Hunter

DATE:23 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2020 at 11:59am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – no response to s 359A invitation – not entitled to appear before the Tribunal – ­­­­­­decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 21 November 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 Direct Entry stream, to work in the nominated position of Cook for her nominated employer FATHE GROUP PTY LTD. The second and third named applicants have applied for the visas on the basis of being members of the applicant’s family unit.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by FATHE GROUP PTYLTD was refused by a delegate on behalf of the Minister, on 8 March 2018.

6. The Tribunal received an application for review from the applicants on 28 July 2018. The applicants were represented in relation to the review by their registered migration agent.

7. On 19 March 2020, the Tribunal wrote to the applicants pursuant to the provisions of s.359A of the Act, inviting the applicants to provide comment on information that it considered would be a reason or part of a reason for affirming the decision under review in writing. The information related to the Tribunal’s records that it was found to have no jurisdiction in relation to the application by FATHE GROUP PTY LTD to review the Department’s decision. The Tribunal explained that the relevance of the information and informed the applicants that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements in cl. 187.233(2) of Schedule 2 to the Regulations.

8. The invitation was sent to the representative of the applicants at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 2 April 2020, the Tribunal may make a decision on the review without taking further steps to obtain comments from the applicants and that they would lose any entitlement that they might otherwise have had under the Act to appear before the Tribunal and give evidence and present arguments. No response was received from the applicants or their representative within the timeframe as set out in the Tribunal’s letter pursuant to s.359A of the Act.

9. On 9 April 2020, the Tribunal wrote to the applicants and advised that as it had not received a response to its letter of 19 March 2020, they had lost any entitlement that they may have to appear before the Tribunal. As at the date of this decision no further communication has been received from the applicants.

10. The Tribunal is satisfied that the invitation was properly sent to the applicant’s authorised recipient. The invitation informed the applicant that the comments had to be provided in writing by 2 April 2020. The applicant had not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. In the circumstances, the Tribunal has decided to proceed to decision on the information before it. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the nomination associated with the applicant’s visa application has been approved.

    Nomination of a position

14. 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.

15. 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 r.1.13A and r.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.

16. The applicant applied for the visa on the basis of a nomination in the position of Cook made by FATHE GROUP PTY LTD. As set out in the decision of the delegate of the Minister, and submitted to the Tribunal by the applicant, this nomination application was refused by the Department on behalf of the Minister on 8 March 2018.

17. FATHE GROUP PTY LTD applied to the Tribunal for a review of the Department’s decision to refuse the nomination. As set out in the s.359A letter to the applicants, the Tribunal found that it had no jurisdiction in relation to this application on 12 February 2020. The applicants have provided no material to dispute this. This means that the decision of the Department remains unchanged.

18. On the evidence before it the Tribunal finds that the relevant nomination by the FATHE GROUP PTY LTD in respect of the visa application under review has not been approved. It therefore follows that the applicant has not met cl.187.233(2) and cl. 187.233 of Schedule 2 to the Regulations has not been met as a whole.

19. 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.

20. As the second and third named applicants have applied for the visa as members of the family unit of the applicant because the applicant does not meet the primary requirement for the visa and there is no evidence to suggest that the second named applicant or third named applicant meet the primary requirement for the visa. In the circumstance the Tribunal also affirms the decision in respect of the second and third named applicants.

    DECISION

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

    Penelope Hunter
    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.