Mushiana (Migration)

[2022] AATA 4815

Mushiana (Migration) [2022] AATA 4815 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Navneet Kaur Mushiana

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  1917645

HOME AFFAIRS REFERENCE(S):          BCC2017/4213440

MEMBER:De-Anne Kelly

DATE:21 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 21 November 2022 at 8:49am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 (Cth) (the Act).

2. The applicant applied for the visa on 10 November 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations the employer nomination by Kaur Anahat Pty Ltd was refused being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The applicant requested through their newly appointed agent for a postponement on the basis that she had not received the hearing invitation but had received the SMS text message and needed additional time to prepare for the hearing. The Tribunal found the hearing notice had been properly sent to the email address of the previous appointed agent and there was no reasonable basis to postpone the hearing. The hearing was assisted by a Punjabi to English interpreter.

7. The applicant was represented in relation to the review by Narinderpal Kaur MARN: 0955184 and from 31 October 2022 by Jujhar Bajwa MARN: 0742209.

8. During the hearing the Tribunal asked and received several assurances that the interpretation was clear and understood.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant satisfies cl. 187.233(3) which provides as follows.

    (3) The Minister has approved the nomination

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

12. 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 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.

13. The Tribunal advised the applicant under s359AA of the Migration Act (Cwth) 1958 that on 19 July 2022 it affirmed the decision to refuse the employer nomination because it could not be satisfied that the nominator was actively and lawfully operating a business in Australia. As such there is no approved employer nomination to satisfy cl.187.233(3).

14. The applicant responded directly in the hearing and advised that in relation to the refusal of the employer nomination she would respond in 14 days in writing. The Tribunal was concerned that the previous agent had apparently not passed on the hearing notice to the applicant and asked if they would like it to refer the agent to the Office of Migration Agents Registration Authority OMARA for failing to act diligently however the agent and applicant demurred and said they did not want a referral made.

15. The applicant advised the Tribunal on 16 November 2022 of the background to her case and the circumstance that lead up to the closure of the business. She is working as a restaurant manager in Tasmania for the past   several months. She has asked for additional time to find another reliable sponsor and the Tribunal takes this as a request for an adjournment.

16. In the request for an adjournment, the Tribunal is guided by Minister for Immigration and Citizenship v Li [2013] HCA where their Honours found it warranted where a specific document which was material to the decision under review was forthcoming. That is not the case here. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

17. It is noted that no request for referral for Ministerial Intervention was made and there does not seem to be evidence that would enliven the criteria for such a referral.

18. The Tribunal finds there is no approved employer nomination.

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.

    De-Anne Kelly
    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.