Multani (Migration)

[2018] AATA 3747

Multani (Migration) [2018] AATA 3747 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajinder Kaur Multani
Mr Manjinder Singh Khurdea

CASE NUMBER:  1803362

DIBP REFERENCE(S):  BCC2016/4245118

MEMBER:Denise Connolly

DATE:4 July 2018

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 04 July 2018 at 10:25am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry Nomination stream – Child Care Worker – Nomination withdrawn –  No approved nomination –Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65.
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

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 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 15 December 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 Child Care Worker.  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 on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by the nominator was withdrawn and therefore not approved.

6. The applicants appeared before the Tribunal on 24 May 2018 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

   Nomination of a position

8. The issue in the present case is whether the applicant meets the requirements of cl.187.233. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

9. 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.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nomination lodged by Lady Bug Holdings Pty Ltd acting for the Child Care Trust (Ladybug Holdings), of which the applicant was the subject (Transaction Reference Number (TRN) , EGOC0GGP89), was withdrawn. 

11. Prior to the hearing the applicant provided a copy of an acknowledgement of nomination application sent to Ladybug Holdings by the Department acknowledging Ladybug Holdings has made another nomination application nominating the applicant, after withdrawing the related nomination application.

12. The applicant has provided the acknowledgement letter recording the new TRN for the second nomination, EGOGVUBOJU. The Tribunal notes the TRN she provided in the visa application for the related nomination is TRN EGOC0GGP89.

13. The applicant wrote to the Tribunal explaining that her employer had withdrawn the nomination due to unavoidable circumstances. However it has now lodged another nomination application.  The applicant advised that the Department has informed her that the second nomination application cannot be attached to this visa application. She believes this is unfair and it does not make sense.  

14. At the hearing the Tribunal explained the requirements of cl.187.233. It explained that the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. It explained that this issue has been the subject of case law which the Tribunal must apply.

15. The applicant indicated that there had been differences of opinion amongst Ladybug Holdings’ shareholders and the employer had to withdraw the nomination application which she referred to in her visa application. However things improved and Ladybug Holdings decided to ‘relaunch’ the nomination application. The Tribunal explained that it may form the view that the new nomination application lodged by Ladybug Holdings cannot be relied on for the purposes of meeting cl.187.233.

16. The Tribunal has considered the discussion of cl.187.233 in Singh v MIBP [2017] FCAFC 105 where the Court held:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ r.5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under r.5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.

17. The Tribunal understands this to mean that nomination relied on to satisfy cl.187.233 must be the nomination which was referred to in the visa application, in this case the related nomination, TRN EGOC0GGP89. As that nomination application was withdrawn it was not approved. Therefore the applicant does not meet cl.187.233(3). The Tribunal is of the view there is no utility in waiting for the subsequent nomination application, TRN EGOGVUBOJU, to be decided because the applicant cannot rely on it to meet cl.187.233.

18. Therefore, the applicant does not meet cl.187.233.

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.

    DECISION

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

    Denise Connolly
    Member