Munasinghe (Migration)

[2023] AATA 2104

Munasinghe (Migration) [2023] AATA 2104 (3 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kumudu Prabodhanie Munasinghe
Mr Gervin Prasantha Kumara Weerapperuma

CASE NUMBER:  1920339

HOME AFFAIRS REFERENCE(S):          BCC2018/631903

MEMBER:Stephen Witts

DATE:3 July 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 July 2023 at 8:13am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Hairdresser – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.233; 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 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 7 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 of hairdresser.

5. The delegate refused to grant the visa because the applicant 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 9 May 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 by the applicants dated 8 July 2019.

13. In this decision it was contended by the delegate that on 23 May 2019 the applicants were advised that the nomination submitted by H Z Investments Australia Pty Ltd for their nominee, the primary applicant, was refused by the Department and that therefore the applicants did not satisfy subclause 187.233 in that they were not the subject of an approved nomination.

14. The Tribunal notes that some material was provided prior to the hearing including a letter of offer to the primary applicant dated 15 December 2017 stating that it offers employment with the above employer subject to the grant of the primary applicant’s visa. Also included was an academic record for the primary applicant demonstrating that she has studied hairdressing at certificate and diploma level prior to 2019. Some evidence of employment was also provided via payslips including with the above employer.

15. At the hearing the Tribunal had a discussion with the applicants regarding the application.

16. The primary stated that she first came to Australia in March 2016 on a student visa and that she studied for five years at certificate and diploma level in hairdressing and salon management while also working part-time. She stated that all her study was related to her career and that she did start work as a hairdresser with this business in June 2017 and did work for them for up to 4 years but that the owner subsequently died, and his wife started to manage the salon.

17. She stated that the owner did say that she did not want to be involved in sponsorship anymore and also that it was difficult to provide her with employment after she had a child. She stated that she has a son who is two years old and that her husband must now look after her son full-time as they moved to South Australia in 2021 and that she is working full-time as a hairdresser.

18. She stated that she has lost a lot of money during this process, that she feels as if she has been treated badly, that she is a skilled person who deserves to continue her career here. She acknowledged that she is no longer the subject of an approved nomination with the above employer.

19. The Tribunal has considered this matter very carefully noting the above difficulties that have been experienced by the family but also notes that there is no evidence before it that the primary applicant is the subject of an approved nomination. On that basis the Tribunal finds that the applicants do not meet the criteria for the visa.

20. Therefore, cl 187.233 is not met.

21. 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.

22. The Tribunal also finds that as the primary applicant did not meet the requirements for the grant of the visa that the secondary applicant also did not meet the requirements for the grant of the visa.

    DECISION

23. 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.