Kumari (Migration)

[2018] AATA 2036

Kumari (Migration) [2018] AATA 2036 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Raj Kumari
Mr Gurinder Kumar
Ms Jasleen Jhally

CASE NUMBER:  1711774

DIBP REFERENCE(S):  BCC2016/1568388

MEMBER:Mark Bishop

DATE:27 April 2018

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 27 April 2018 at 1:55pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry Nomination stream – Cook – Nomination review application withdrawn – Not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.223, 187.311

CASES
Singh v MIBP [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 Immigration and Border Protection 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 27 April 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations. On 28 March 2017 the nomination lodged by Australian Asian Foods Pty Ltd being the nomination referred to in cl.187.233(1) was refused by a delegate of the Minister. Accordingly cl.187.233(3) was not met.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.187.233(3), which requires that the nomination has been approved.

   Applicant Raj KUMARI

9. The Tribunal notes the decision in Singh v MIBP [2017] FCAFC105 at [88] – [90] in which the Court held that the nomination relied to satisfy cl.187.223 must be the nomination which has been made at the time of visa application (judgment summary).

10. On 15 March 2018 the Tribunal wrote to the applicant in relation to the application for review made by him in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

11. The Tribunal invited the applicant “under s.359(2) to provide in writing information demonstrating that you are the subject of a nomination approved by the Minister under r.5.19 as required by cl.187.233(3) of Schedule 2 to the Migration Regulations 1994”.

12. The applicant did not respond to that request for information. The applicant did not request an extension of time to respond to the request. The applicant did not provide any information as requested.

13. On 9 April 2018 the Tribunal wrote to the applicant under s.359A requesting the applicant comment on some potentially adverse information. The Tribunal provided the particulars of the adverse information, explained its relevance and outlined the potential consequences if the Tribunal had regard to the potentially adverse information.

14. The potentially adverse information related to the withdrawal of a nomination review application by Australian Asia Food Pty Ltd on 27 February 2018 in Matter number 1707213.

15. The applicant did not respond to the above request as outlined in paragraph 13 above. The applicant did not provide any comments or respond to the information in writing.

16. There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

17. Accordingly the requirements of Cl.187.233(3) are not met.

18. Therefore, the Tribunal must affirm the decision under review.

    Secondary applicants Gurinder KUMAR and Jasleen JHALLY

19. An application for a Regional Sponsored Migration Scheme (subclass 187) visa has been made by the applicant. Under the migration law, a visa cannot be granted unless the relevant legal requirements that are specified in the Act and the Regulations are satisfied. Clause 187.311 of Schedule 2 to the Migration Regulations 1994 has not been satisfied. This provision provides that:

    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.

20. The dependent applicants, Gurinder KUMAR and Jasleen JHALLY, have made a valid combined application with the primary applicant. Gurinder KUMAR and Jasleen JHALLY have not made any claim towards satisfying this class of visa other than as a claimed member of Raj KUMARI’s family unit, for the purpose of this application.

21. Since the main applicant is unable to meet Sub regulation 187.233, the dependent applicants are unable to meet criteria 187.311(a), which states:

    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.

22. As the applicants are not 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, clause 187.311 is not satisfied.

    CONCLUDING PARAGRAPH

23. 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.

    DECISION

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

    Mark Bishop
    Member