Rai (Migration)

[2021] AATA 5572

Rai (Migration) [2021] AATA 5572 (20 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sharada Rai
Mr Rajib Malakar

CASE NUMBER:  1812782

HOME AFFAIRS REFERENCE(S):          BCC2016/4130776

MEMBER:Wan Shum

DATE:20 April 2021

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 April 2021 at 9:47am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – restaurant manager – subject of approved position nomination – refusal of related nomination application affirmed – nominating business no longer operating – continuing work with another employer –  decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3),

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 December 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 (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 Restaurant Manager. The related nomination was made by RNM Enterprise Pty Ltd (the nominator) on 9 August 2016.

5. The nomination was subsequently refused on 27 March 2018.

6. As a consequence, the delegate refused to grant the visas finding that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicant had sought review of those decisions. Both parties were represented by the same registered migration agent.

8. The Tribunal invited the applicants to attend a hearing on 17 March 2021. A letter was also sent to the applicants inviting them to comment on or respond to information that a decision had been made by the Tribunal (differently constituted) to affirm the decision not to approve the nomination. The Tribunal received a request to reschedule the hearing on medical grounds because the applicant is currently pregnant and it was claimed that “[w]ith less than 2 weeks left for the hearing, the applicant is stressed about making all arrangements on such short notice. Given the applicant’s circumstances, any form of external pressure can have a negative impact on her and the baby's health…” The documentation provided indicated that the applicant’s baby is due in September 2021, with no medical concerns highlighted, on the contrary stating that she is low risk for fetal aneuploidy. The representative requested an extension to prepare for the hearing. The Tribunal considered the request, and agreed to allow a further week to prepare for the hearing which was rescheduled to 24 March 2021 at 9am (Qld time) or 10am (NSW time). The evening prior to the hearing the Tribunal received an email from the representative stating that the applicant is “going through some health issues as she is currently pregnant as such she won't be able to attend the hearing as scheduled. A medical certificate confirming the same is attached. We would appreciate an alternative hearing day for this case.” The medical certificate indicated that the applicant is receiving medical treatment and would be unfit for her usual occupation from 23 to 25 March 2021 inclusive, but did not give any details as to why. The hearing was again rescheduled to 9 April 2021.

9. The applicant appeared before the Tribunal to give evidence and present arguments by MS Teams audio.

10. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. This requirement is set out in clause 187.233 which appears 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.

13. 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.

14. On the visa application form, the applicant provided details of a related nomination, which is the nomination made by RNM Enterprise Pty Ltd for the position of Restaurant Manager. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

15. On 2 December 2020, the Tribunal (differently constituted) affirmed the delegate’s decision not to approve the nomination. Following the invitation to the first hearing scheduled, the Tribunal wrote to the applicants seeking their comments on or response to the information that the nomination had not been approved and explaining the relevance of that being that the applicant would not meet cl.187.233(3).

16. During the hearing on 9 April 2021, the applicant confirmed that her visa application was made in respect of the nomination made by RNM Enterprise Pty Ltd for the position of Restaurant Manager. The Tribunal referred to there being no approved nomination and the applicant indicated that she had been aware of this since 3 December 2020. The applicant said that she been in Australia for some time now and remained in Queensland working as a Restaurant Manager, despite the COVID19 pandemic. She said a refusal would have a great impact on her and her husband’s lives as she is currently 4 months pregnant and they had high hopes to raise their baby here. The applicant also referred to it not being safe to travel back to their country due to the pandemic and that their wish is to contribute their skills as migrants to Australia.

17. The Tribunal has considered her circumstances but does not have any discretion in relation to this criterion. As the business is no longer operating, there is no possibility that the nomination will be approved. Further, as explained, the current application is essentially linked to the nomination made by RNM Enterprise Pty Ltd and it is not possible to change employers. This would require that the employer make a nomination application and for the applicant to make a new employment visa application. The Tribunal did not consider it appropriate to further delay the decision for any “arrangements” that needed to be made noting that the applicant had known that the nominating business was ‘going down’ or in liquidation and was aware of the decision that the nomination had not been approved since 3 December 2020.

18. The position of Restaurant Manager to which the application relates has not been approved which means that cl.187.233(3) is not met. Therefore, cl.187.233 is not satisfied. There is no dispute about this.

19. 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. While the Tribunal has considered the applicant’s wishes, it is unable to make a favourable finding in this case.

20. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decisions under review must be affirmed.

    decision

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

    Wan Shum
    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.