Randhawa (Migration)

[2018] AATA 4734

Randhawa (Migration) [2018] AATA 4734 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jagmeet Kaur Randhawa
Mr Tarvinder Pal Singh Bhangoo

CASE NUMBER:  1708485

HOME AFFAIRS REFERENCE(S):           BCC2016/1123626

MEMBER:Karen Synon

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2018 at 1:11pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of retail manager – nomination was not approved – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

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 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 15 March 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 Direct Entry stream, to work in the nominated position of ‘Retail Manager’.

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 lodged by ‘MOIRA BENIWAL PTY LTD was refused on 13 February 2017.

6. The applicants applied for review of the primary decision on 19 April 2017 and provided a copy of the department’s decision.

7. On 25 September 2018, the applicants were invited to a hearing on 24 October 2018 to give evidence and present arguments.  On 25 September 2018 the applicant asked that the hearing be postponed because they were visiting the applicant’s ill father in India.  This request was granted and the hearing was scheduled until 3 December 2018.

8. On 26 November 2018 the applicants asked that the hearing be rescheduled to be held in person in Brisbane where the applicants were now living and working.  In response on 27 November 2018 the Tribunal advised that the hearing would be conducted as scheduled and via telephone as is the Tribunal's normal practice in these cases.

9. The applicants appeared before the Tribunal on 3 December 21018 to give evidence and present arguments.  The hearing was conducted via telephone with the applicants in Sydney.

10. The applicants were represented in relation to the review by their registered migration agent.   She did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is cl.187.233.

    Nomination of a position

13. 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.

14. 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.

15. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to the applicant.  As recorded in the primary decision, a copy of which was provided to the Tribunal, this position nomination is no longer available to him as the nomination lodged by MOIRA BENIWAL PTY LTD was refused by the department on 13 February 2018.

16. Invited to make any submissions the applicant said there are 2 parts to the 187 and her part was opened on 9 February 2017 but the other part was refused on 13 February 2017.  She requested that the employer apply to review the nomination but he said no, he did not want to take it further.  Only 14 people lived where she worked and the nearest supermarket was 100 kilometres away.  There was just the service station, where she worked, and a pub.  She worked very hard for almost a year and did extra shifts.  The applicant feels it was not fair and because she worked so hard, she did not deserve this.  This is why she applied for review; she came to court (the tribunal) to tell what had happened to her and how it was not fair.  The applicant said she understands that without a nomination her visa cannot be granted.

17. Asked if she agreed that the nomination for the occupation of Retail Manager with MOIRA BENIWAL PTY LTD was no longer available to her, the applicant said yes.

18. Invited to do so, the second named applicant declined the opportunity to give evidence.

19. Based on the information before it in the primary decision the Tribunal finds that the applicant is not the subject of an approved nomination.  Therefore, cl.187.233 is not met.

20. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second named applicant does not satisfy the secondary criteria for the grant of the visa, in particular cl.187.311 which requires that an applicant must be a member of the family unit of a person who holds of a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

21. 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

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

    Karen Synon
    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.