Nirmaljit Kaur (Migration)

[2018] AATA 3879

Nirmaljit Kaur (Migration) [2018] AATA 3879 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nirmaljit Kaur Nirmaljit Kaur
Mr Shiv Kanwar Singh
Miss Prabhnoor Kaur

CASE NUMBER:  1732546

HOME AFFAIRS REFERENCE(S):           BCC2016/2993578

MEMBER:Peter Emmerton

DATE:17 September 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 17 September 2018 at 12:40pm

CATCHWORDS
MIGRATION –Regional Employer Nomination (Permanent) – subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – nominated position of pastry chef – tribunal affirmed nomination refusal –original nominator no longer in business – members of the family unit unable to satisfy criteria

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359AA
Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cls 187.233, 187.311

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 Immigration and Border Protection 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 8 September 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 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), Ms Nirmaljit Kaur NIRMALJIT  KAUR is seeking the visa in Direct Entry stream, to work in the nominated position of Pastry Cook ANZSCO 351112.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicants appeared before the Tribunal on 17 September 2018 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent until 08-16 on 17 September 2018, at which time the Tribunal was notified by email, by the representative, that he was no longer representing the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been approved.

10. On 8 September 2016, the applicant’s sponsoring employer, Trustee for the Xhihani Family Trust applied for approval for a nomination for the position of Pastry Cook. Ms Nirmaljit Kaur NIRMALJIT KAUR is the nominee for the position. On 3 November 2017 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(d)(i) of the Regulations. In a separate decision, the Department refused Ms Ms Nirmaljit Kaur NIRMALJIT KAUR’s subclass 187 visa application because Trustee for the Xhihani Family Trust’s nomination was not approved.

11. Trustee for the Xhihani Family Trust and Ms Nirmaljit Kaur NIRMALJIT KAUR applied to the Tribunal to review the department’s decisions.

12. On 19 June 2018 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by Trustee for the Xhihani Family Trust for the position of Pastry Cook, (ANZSCO 351112).[1]

    [1] AAT Migration and Refugee Division Case No. 1729180

13. On 20 June 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised her that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by Trustee for the Xhihani Family Trust.

14. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, she cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

15. The applicant was advised that if she cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing her the visa. As a consequence the secondary visa applicants would also be unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.

16. The applicant was invited to provide a written response by 4 July 2018. The letter advised the applicant that if she did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

17. The applicant responded to the letter on 4 July 2018 requesting an extension of time to respond to the letter under s.359A. This extension was granted by the Tribunal until 19 July 2018.

18. The applicant responded on 17 July 2018 stating that she was seeking a new nominator and that the original nominator had sold the business.

19. The visa applicant stated during the hearing that the original nominator was no longer in business.

20. On 20 July 2018, the Tribunal invited the applicant to appear before the Tribunal in a hearing on 17 September 2018. No response was received.

21. The first named visa applicant, Ms Kaur, appeared before the Tribunal on 17 September 2018.

    Nomination of a position

22. 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).

23. 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.

24. The Tribunal formally explained to the applicant pursuant to s.359AA that the fact that the nomination had been unsuccessful meant that it was not possible for the visa application to succeed. The Tribunal then stated that the position to which the visa application relates to is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination of a position made by a different employer, as decided by Judge Smith, 13 May 2016, in Hasan v MIBP.

25. The Tribunal also stated why this was relevant and why this information would be the reason or part of the reason for affirming the decision under review.

26. The applicant was asked if she understood the information and why it was relevant. Ms Kaur stated that she understood the information and why it was relevant.

27. The Tribunal asked the applicant if she needed time to comment or respond to the information and a recess was offered. Ms Kaur stated that she did not require additional time and understood the information and why it was relevant. Ms Kaur chose not to comment further on the information that the Tribunal had presented.

28. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

29. As a consequence the Tribunal also finds that the secondary visa applicants are unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.

30. Therefore, cl.187.233 is not met.

31. 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

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

    Peter Emmerton
    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

    (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.