Matharu (Migration)

[2023] AATA 3259

Matharu (Migration) [2023] AATA 3259 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Avtar Kaur Matharu
Master Jasdave Singh Dhaliwal

REPRESENTATIVE:  Mr Gursharan Singh (MARN: 0640600)

CASE NUMBER:  1922704

HOME AFFAIRS REFERENCE(S):          BCC2018/968266

MEMBER:Stephen Witts

DATE:3 October 2023

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 03 October 2023 at 12:59pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – office manager – subject of approved position nomination – related nomination application refused – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 28 February 2018. 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.

5. The delegate refused to grant the visas because the applicants did not meet cl 187.233 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicants were the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 3 October 2023 to give evidence and present arguments.

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 applicants are the subject of an approved nomination.

   Nomination of a position

9. 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.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

11. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

12. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision recorded by the applicants. In this decision it was stated that an application for a nomination on behalf of the primary applicant was lodged on 28 February 2018 on the basis that she has been nominated for the position of office manager under the direct entry stream.

13. According to the delegate on 2 July 2019 the nomination lodged by Psingh Services Pty Ltd on behalf of the primary applicant/nominee was refused by the Minister. Therefore, the delegate made a decision that the applicants were not the subject of an approved nomination.

14. At the hearing the Tribunal had a discussion with the primary applicant regarding the application.

15. The primary applicant stated that she started work with this employer in February 2018 in Tamworth and that she still working for them as an office manager and that the business is a cleaning company. She stated that she was aware that there may have been a problem with her nominator’s RCV status and that it may not have given all the information required to the Department but stated that she has given a lot of time to Australia and her son has been born in Australia.

16. The Tribunal has considered the evidence carefully noting that it is not contested that the nominator has been refused a visa and that the applicant therefore is not the subject of an approved nomination.

17. The Tribunal therefore finds that the applicant is not the subject of an approved nomination.

18. Therefore, cl 187. 233 is not met.

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. The Tribunal also finds that as the primary applicant does not meet the criteria for the grant of the visa that the secondary applicant also does not meet the criteria for the grant of the visa.

    DECISION

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

    Stephen Witts
    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.