Lubana (Migration)

[2019] AATA 6199

Lubana (Migration) [2019] AATA 6199 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kamaljit Kaur Lubana

CASE NUMBER:  1906698

HOME AFFAIRS REFERENCE(S):          BCC2017/2444341

MEMBER:Phoebe Dunn

DATE:17 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 17 October 2019 at 4:35pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – no approved nomination – nomination review withdrawn by employer – applicant’s participation in Job Ready Program – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.223; 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 July 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 (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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(4) of Schedule 2 to the Regulations because on 11 February 2019 the nomination lodged by the Trustee for D&C Tabone Family Trust, being the nomination referred to in paragraph 187.233(1), was withdrawn by a delegate of the Minister for Immigration and Border Protection, and as such cl.187.233(4) was not met as the nomination had been withdrawn.

6. The applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review by her registered migration agent, Mr Jholl Singh, who did not attend the hearing.

8. At the hearing, the Tribunal 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.  The Tribunal advised the applicant that the Tribunal was raising the information with the applicant, not because the Tribunal had already made up its mind in relation to the information, but to give the applicant an opportunity to comment on or respond to the information in order to help the Tribunal to make up its mind . The Tribunal explained the relevance of the information and the consequences of it, as follows:

   a.The particulars of the information are that the application for approval of the nominated position made by The Trustee for the D&C Tabone Family Trust in respect of the applicant’s Subclass 187 visa application was withdrawn on 11 February 2019.  Further, a search of the applicant’s Departmental records undertaken by the Tribunal indicates that the applicant is not currently the subject of a nomination by an approved standard business sponsor, and that the applicant is currently on a WA-010 Bridging Visa.

   b.This information is relevant to the review because it suggests that there is not an approved nomination on foot in respect of the applicant that has not subsequently been withdrawn as required under cl.187.233(4) of the Regulations and it is a requirement for the grant of the Subclass 187 visa that the position specified in the visa application is the subject of an approved nomination that has not subsequently been withdrawn; and

   c.If the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified in the visa application is not the subject of an approved nomination, and that this would mean that the applicant does not satisfy a requirement for the grant of the Subclass 187 visa, and that the Tribunal must affirm the decision that is under review.

9. The Tribunal explained that this would be the reason or part of the reason, for affirming the delegate’s decision to refuse the applicant’s visa application, and invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information. 

10. In response, the applicant advised the Tribunal that she understands that there is no approved nomination and that as a consequence she does not meet the requirements of the Subclass 187 visa application. In oral evidence at the hearing, the applicant provided some context for her current situation, noting that her former migration agent had set up the arrangement with the nominating business, and that she had never met her prospective employer. The applicant stated that she had paid the agent $5,000, and the agent lodged the nomination and associated Subclass 187 visa application, but this was subsequently withdrawn by the  nominator with no explanation, and the applicant was allegedly not reimbursed. The applicant advised that she is currently pursuing a case against her former migration agent through the Victorian Administrative Appeals Tribunal. The applicant further advised the Tribunal that she is currently enrolled in the ‘Job Ready Program’, working as a cook.  The applicant advised the Tribunal that she has to work in that position for one year and only has a few months to go before she can lodge another visa application under that scheme. 

11. The applicant requested additional time to provide further details in relation to her current arrangements under the ‘Job Ready Program’ in response to the information put to the applicant under section 359AA of the Act.  The applicant advised the Tribunal that she needs time to finish her work experience and new visa application under the ‘Job Ready Program’. The Tribunal granted the applicant two weeks to comment on or respond to the information, with such comment or response due on 10 October 2019.

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 applicant meets cl.187.233.

    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 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 Tribunal notes the oral evidence given by the applicant at the hearing, referenced in paragraphs 10 and 11 of this decision, and has considered the following information received from the applicant post hearing:

    a.Copy of email dated 14 August 2019, 9.11pm from ‘Employment – JRP Enquiries’ to the applicant setting out processes for updating work hours, maintaining employment journals and/or Quarterly Progress Reports, claiming prior employment, and noting that a response, if required, will be received within the timeframes specified on the Trade Recognition Australia website (Tribunal file, folio 44 and verso);

    b.Copy of email dated 5 July 2019, 2.01am, from Trade Recognition Australia ([email protected]), outlining the process for lodging an application for the Job Ready Program (Tribunal file, folio 45 and verso);

    c.Letter from the Department of Home Affairs to the applicant dated 28 March 2019, advising that a Bridging A visa had been issued for the applicant (Tribunal file, folio 46 and verso);

    d.Copy of the Trade Recognition Australia Job Ready Program application and employment registration forms for the applicant signed and dated 11 July 2019 (Tribunal file, folios 47- 49);

    e.Copy of the Job Ready Program Employment Verification Report – Chef, signed and dated 13 August 2019, verifying employment of the nominee (Tribunal file, folio 51 verso to 52);

    f.Copy of the Job Ready Program Prior Employment Verification form for the applicant for the period from 1 May 2019 to 4 July 2019, signed and dated 13 August 2019, together with payslips for the same period (Tribunal file, folio 53 verso to 60);

    g.Letter from Trades Recognition Australia to the applicant dated 2 July 2019 (Tribunal file, folio 61); and

    h.Copy of email dated 12 August 2019 at 2.51 pm from Trade recognition Australia acknowledging receipt of documents submitted for the Job Ready Program (Tribunal file, folio 43).

17. By email to the Tribunal received on 9 October 2019 at 12.03pm, the applicant has made the following submission:

    “Hi, there as I send all my documents related to my job and TRA department email as well. As u can see that I am in middle of doing my JOB READY PROGRAM I just need time to finish it.so, after completing this experience I will be eligible to apply for STATE SPONSORSHIPS it’s my humble request plzz let me finish my experience that Iam working in thanks….” (sic)

18. The Tribunal understands that the circumstances of this case are difficult for the applicant and notes that the applicant has made a genuine effort to find work in her nominated position of Cook, and to secure a new visa through the Job Ready Program.  However, the Tribunal notes that the issue in this case is whether the applicant meets the requirements of cl.187.233, and specifically whether the nomination referred to in cl.187.233(1) has been approved. The Tribunal notes that none of the documents referred to in paragraph 16 of this decision are relevant to this consideration.  In this case, the nomination application referred to in cl.187.233(1) of the applicant’s Subclass 187 visa application was withdrawn on 11 February 2019 at the request of the nominator, and as such there is no approved nomination as required under cl.187.233(3). Accordingly, cl.187.233(3) is not met.

19. Therefore, cl.187.233 is not met.

20. 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

21. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Phoebe Dunn
    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.