Priyanka (Migration)

[2023] AATA 4635

Priyanka (Migration) [2023] AATA 4635 (30 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Priyanka
Mr Jagpreet Singh
Mr Zorawar Singh Bhullar

REPRESENTATIVE:  Mr Harshdeep Singh (MARN: 1577093)

CASE NUMBER:  2000253

HOME AFFAIRS REFERENCE(S):          BCC2018/968825

MEMBER:Karen McNamara

DATE:30 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2023 at 11:35am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Chef – nominator had failed to present at the hearing – applicant failed to provide the comments within the prescribed period – no approved nomination – not the subject of an approved nomination– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.13, 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 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 28 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 Mrs Priyanka (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. On 19 December 2019, the delegate refused to grant the visas because Mrs Priyanka did not meet cl.187.233 of Schedule 2 to the Regulations, which required Mrs Priyanka to be the subject of an approved nomination. The delegate found that the nomination lodged by Vaansh Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 12 November 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the secondary applicants Mr Jagpreet Singh and Mr Zorawar Singh Bhullar, could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants lodged an application for review with the Tribunal on 6 January 2020. A copy of the delegate’s decision accompanied the review application. The Tribunal also has before it, the Department file containing all information before the delegate at the time of their decision.

9. On 24 August 2023, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal via telephone on 24 October 2023 at 10:00am.

10. On 24 October 2023, Mrs Priyanka appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jagpreet Singh (secondary applicant). The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. During the hearing the interpreter was disconnected from the hearing for a short period. During her absence the applicant’s advised that they were willing to proceed without her services. The applicants did not report any concerns with understanding the Tribunal nor dissatisfaction with the interpretation. The matter was listed as a combined hearing in conjunction with the associated nomination application for review (AAT case file 1934133). The nominator however failed to attend the scheduled hearing.

11. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

12. The applicants were represented in relation to the review. The representative did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

15. 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.

16. 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.

17. At the hearing of 24 October 2023, the Tribunal advised the applicants that the associated nominator had failed to attend the scheduled hearing. The applicant told the Tribunal that she has tried to contact the nominator, but they are not responding to her. The nominator sold the business without letting her know and that she is no longer working for Vaansh (the nominator). Following the sale of the business in January she “quit her job”. The applicant told the Tribunal that the new owner is willing to employ her, but first wanted her to talk to the Tribunal. The applicant advised the Tribunal that the business name is the same but operates under a different ABN. The applicant requested the Tribunal to consider her work experience with Vaansh having worked for Vaansh for five years. Mr Singh requested the Tribunal to provide one more hearing date to allow time for the applicants to organise paperwork from the new owner.

18. The Tribunal explained to the applicants that their visa application is tied to the original nomination and is not applicable to another employer. The applicant told the Tribunal that the name is the same and the company is the same only the ABN has changed. The Tribunal noted the applicants’ evidence but stressed that the nominator had failed to present at the hearing.

19. The Tribunal told the applicants that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in this case, Mrs Priyanka as the primary applicant, is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that Mrs Priyanka’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

20. On 13 November 2023, the Tribunal dismissed the application for review made in respect of the applicants by Vaansh Pty Ltd and for this reason the original decision made by the delegate from the Department of Home Affairs is unchanged.

21. On 14 November 2023, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient/representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to dismiss the application for review made by Vaansh Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.187.233(3), which requires the nomination to be approved. As the application for review was dismissed, the matter was affirmed by the Tribunal on 13 November 2023. As a consequence, their application for a subclass 187 visa is not subject to an approved nomination.

22. The Tribunal further noted that this information is relevant because cl.187.233(3) requires that the nomination made in relation to the applicant by the nominating employer has been approved. The nomination relied on to satisfy cl 187.233 must be the one that was made at the time of the visa application and that it is not possible to rely on another nomination. The applicant must have a related nomination to be able to be granted the visa.

23. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 28 November 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

24. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

25. Despite being afforded opportunity to provide comment/response to the Tribunal’s letter of 14 November 2023, the applicants have not provided supporting evidence to support their claims at the hearing, that the new owner is prepared to employ the applicant. Nor is there probative evidence before the Tribunal to support that said new owner operates under the entity Vaansh Pty Ltd. Additionally, the nominator did not seek to have the matter reinstated.

26. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

27. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

28. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

29. In relation to the second named applicant, Mr Jagpreet Singh and third named applicant Mr Zorawar Singh Bhullar, the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

30. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named applicant, Mr Jagpreet Singh and third named applicant Mr Zorawar Singh Bhullar, as a member of Mrs Priyanka’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.187.311.

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.

    Karen McNamara
    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.