Patel (Migration)

[2019] AATA 1943

Patel (Migration) [2019] AATA 1943 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ritaben Vishnubhai Patel
Mr Vishnubhai Dahyalal Patel
Mr Siddharth Vishnubhai Patel

CASE NUMBER:  1717278

HOME AFFAIRS REFERENCE(S):           BCC2016/3971126

MEMBER:Alan McMurran

DATE:20 February 2019

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 20 February 2019 at 1:38pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent)(Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Temporary Residence Transition Stream – nomination application refused – not satisfied applicant would be employed on a full time basis – applicant not subject of approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 187.223, 187.311, rr 1.13A, 1.13B, 5.19

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 25 November 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) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of hairdresser.

   Background

5. The applicant is a 43-year-old Indian citizen, married with one child. The applicant’s husband and child are secondary applicants for the visa. The applicant first came to Australia in February 2009 as a student and obtained a Certificate III in hairdressing in 2011 and a Diploma of Beauty Therapy in 2012, both from the Barrier Reef Institute of TAFE in Townsville, Queensland. At the time of decision, the applicant continues to reside at Gladstone in Queensland with her family.

6. On 28 February 2013, the applicant obtained a 457 visa valid to 28 February 2017, and commenced employment as a hairdresser with the sponsor, Nailsnow Pty Ltd (Nailsnow) trading as OMG Hair and Beauty.

7. In about 2015, Nailsnow negotiated to transfer its business to Maurice Paterson Pty Ltd (MP). MP began paying the applicant’s wages. The applicant continued in employment in the same salon. The applicant’s 457 visa was transferred to the new employer, MP in July 2016.

8. As the applicant’s temporary 457 visa was due to expire in February 2017, the applicant approached her employer who agreed to lodge a RSMS nomination on her behalf. The applicant’s employer, MP, Lodged a nomination application for the applicant in November 2016. The visa applicant lodged her application for the accompanying 187 visa on 25 November 2016.

9. The employer’s nomination application was refused by the Department on 16 June 2017 for reason that the Department was not satisfied the applicant as nominee would be employed on a full-time basis for at least two years in the nominated position. MP did not seek a review of that decision. The applicant’s related visa application was consequently refused by the Department on 26 July 2017.

10. The applicant continued her employment at the same salon which was now back under the control of the original owner, Nailsnow, as apparently negotiations between MP and Nailsnow for the acquisition of the business had broken down.

11. On 29 June 2017, Nailsnow lodged a further nomination application for the position of hairdresser for the applicant. The applicant kept the Department informed of her changes of circumstance concerning her nominated employer.

12. Following her visa refusal by the Department, on 26 July 2017, the applicant lodged this review application, notwithstanding that the nomination to which it was related had been refused and in respect of which there was no review sought.

13. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination by the Minister.

14. The applicants appeared by telephone before the Tribunal in a multi-application hearing list on 20 February 2019 to give evidence and present arguments for this visa refusal review. The applicants were represented in relation to the review by their registered migration agent, who also appeared by telephone from Queensland.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the requirements of the regulation 187.223, of Schedule 2 to the Migration Regulations, and in particular whether the applicant is the subject of an approved nomination by the Minister as required under 187.223(2).

    Nomination of a position

17. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

18. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19)

    ·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.

19. At the hearing, the Tribunal had available for consideration the Department’s file[1] and the Tribunal’s file together with the submissions made by the applicant and her representative and the information obtained from the discussion conducted in the telephone hearing.

    [1] BCC2916/3971126

20. The Tribunal explained to the applicant the purpose of the hearing and the issue for determination. The Tribunal asked if the applicant understood the discussion in the English language, which the applicant confirmed and the Tribunal noted the applicant’s level of English enabled a full and frank discussion to take place without the need of an interpreter. The applicant made no complaint as to her understanding of the discussion. Neither the applicant nor her representative sought an adjournment of the hearing.

21. The Tribunal asked the applicant to explain the background to her employment. The applicant gave some details consistent with the information available from the Department’s file and the Tribunal’s file. The applicant confirmed that she was aware she had no current nomination which had been approved. The Tribunal asked what she was currently doing and the applicant said she was relying upon a recent nomination by her current employer, Dhillomz Hair and Beauty Care Pty Ltd, lodged with the Department on 6 June 2018. That application has not yet been determined.

22. The applicant said that she had been in Australia since 2009 and had been working very hard, firstly to obtain her qualifications as a hairdresser, and then working for her previous employers, Nailsnow and MP from 2013 up until 13 April 2018 when the salon closed. The applicant complained that she had not been kept informed by her previous employers about the sale or transfer of the business, or the operations of the salon. She also complained that the employer had not sought review of the nomination application, nor kept her informed of their intentions in that regard. The representative informed the tribunal that because of the uncertainty as to whether a review had been sought in respect of the refused nomination, by the employer, the applicant chose to continue her application to the Tribunal for review of her visa refusal. The applicant said she had only recently realised that there was no nomination review underway.

23. The applicant said she was extremely upset by the failure of the employer to continue to sponsor her and obtain a successful nomination. She said that she had been a loyal and hard-working employee and had stuck with her employment in the salon, even when the nomination had been refused. The Tribunal put to the applicant that three nominations had been refused for the RSMS nomination, as the Department’s record revealed those refusals were determined respectively on 19 June 2017, 13 April 2018, and 2 July 2018. No review had been sought in respect of those refusals. The applicant confirmed that there was nothing known about the current outstanding nomination application by her present employer, Dhillonz, which had yet to be determined.

24. The Tribunal put to the applicant that the fact the previous nomination to which this visa application applied had been refused and there was no current nomination approved, the Tribunal considers that would be the reason or part of the reason for affirming the decision under review. The applicant was asked to comment and she said that she did not want to return to India and that it would be difficult for her to obtain employment. She said that she did not know what to do now or what she should say to the Tribunal in response to the issue of not having an approved nomination. She asked if the Tribunal could in some way understand her situation and overturn the visa decision. It was clear to the Tribunal the applicant was upset by the prospect of the continued visa refusal.

25. In response, the Tribunal confirmed that it had no discretion to ignore or not apply the provisions of the Regulations which were mandatory and must be complied with. The applicant said that she understood the circumstances, but nonetheless did not know what to do. Towards the end of the hearing, the representative confirmed that she had given certain advice to the applicant about the need to have an approved nomination and without that, the review of her visa refusal could not succeed. The Tribunal explained to the applicant that a visa refusal did not mean that she could not make another application to which she might be entitled. She would however need to make such application offshore, once the decision was made, affirming the Department’s decision.

26. The applicant thought that outcome would be harsh, given her personal circumstances and the fact she had done nothing wrong, and the failure of the nomination was due to no fault of her own. The Tribunal said it has some empathy for the applicant, given the length of time she has been in Australia, her success in obtaining qualifications and the loyalty she has demonstrated in her continued employment over a period in excess of five years, even though not reciprocated by her former employers.

    Findings

27. The Tribunal finds it is satisfied on the facts matters and circumstances outlined in the information before it that the statements made by the applicant are true and correct, that the applicant is genuine in her desire to remain living and working in Australia and has demonstrated the capacity to do so over a lengthy period since 2009.

28. The Tribunal finds however that despite her best efforts, the applicant is not the subject of a nomination approved by the Minister. The Tribunal notes there is a current further nomination application awaiting determination but in respect of which, no visa application is outstanding. The Tribunal is satisfied that the nomination to which the current visa application is related was refused by the Department on 16 June 2017, and two subsequent nominations have also been refused, on 13 April 2018 and 2 July 2018.

29. The Tribunal has no information concerning a current outstanding nomination made on or about 6 June 2018, and cannot make any determination as to whether that application has any reasonable prospects of success. At the time of decision, the Tribunal is satisfied that there is no reasonable likelihood of the applicant being successfully nominated and any subsequent visa application being determined by the Department anytime soon. The uncertainty of the timing and outcome of any current or further applications leads the Tribunal to the view that there is no efficacy in deferring this decision.

30. The Tribunal finds that as the applicant is not the subject of a nomination approved by the Minister, this review of her visa application cannot succeed and the applicant is unable to meet the requirements of the sub-regulation.

31. The Tribunal finds that cl.187.223 is not met.

32. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed

    Secondary applicants

33. The Tribunal finds that the secondary applicants are not members of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of meeting the primary criteria for the grant of that visa.

34. As a result, the secondary applicants do not meet the requirements of the subregulation 187.311.

    DECISION

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

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.