Rangi (Migration)

[2021] AATA 5571

Rangi (Migration) [2021] AATA 5571 (11 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jagroop Singh Rangi
Mrs SUKHWANT KAUR
Miss KOMALPREET KAUR
Master JASMEET SINGH

CASE NUMBER:  1811630

HOME AFFAIRS REFERENCE(S):          BCC2017/1319409

MEMBER:De-Anne Kelly

DATE:11 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 11 March 2021 at 10:22am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – mixed crop farmer – subject of approved nomination – related nomination application refused – combined hearing of nomination and visa reviews – refusal of nomination affirmed – members of family unit – wife’s business investment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cls 187.223(2), 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 8 April 2017. 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 Temporary Residence Transition stream, to work in the nominated position of Mixed Crop Farmer for a subclass 187 visa.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223(2) of Schedule 2 to the Regulations because the nomination by IS & RK Grewal was refused on the 9 March 2018 being the application referred to in cl.187.223(1).

6. The applicant appeared before the Tribunal on 15 October 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

7. The applicant was represented in relation to the review by its registered migration agent, Mr Trent Robert Pickup MARN 0638435 of eVisas, Brisbane QLD 4000.

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 applicant satisfies cl.187.223(2);

   (2)       The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in reg 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.

12. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal on the 14 December 2020 affirmed the decision under review to refuse the employer nomination on the basis that the nominator had failed to satisfy r.5.19(3) of the Regulations.

13. On 16 February 2021, the Tribunal, under s.359A of the Act sent Mr Rangi, Mrs Sukhwant Kaur, Master Jasmeet Singh and Miss Komalpreet Kaur an invitation through their appointed migration agent, to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in their visa application is not the subject of an approved nomination. This would mean that they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. The Tribunal advised that the comments or responses should be received by the 2 March 2021 or the applicants could request an extension of time before that date.

14. The Tribunal, in response to the invitation, has received a statutory declaration from the applicant Mr Jagroop Rangi which states that he came to Australia in 2013 to work for the nominator and brought his entire family with him. The children have now adapted to the environment in Australia and his wife has invested a good deal of money in a greenhouse and paid for a full lease starting in January. A negative decision will impact Mr Rangi’s future; his children’s careers; his wife’s investment and the employer who has a medical condition. He asks the Tribunal to grant him a visa to remain in Australia.

15. The Tribunal acknowledges that decisions affirming a refusal of an employer nomination can have significant impacts on the visa applicants linked to that application however all applicants would be aware that they are on temporary visas and should be cautious of making investments in Australia until their visa status is finalised. It is also the case that the merits of the visa application are tied to the merits of the employer nomination application. The Tribunal acknowledges the decision to affirm the visa refusal will have an impact on Mr Rangi and his family however the Tribunal is bound to apply the law.

16. Unfortunately, the employer nomination in this case was affirmed and there is therefore no approved employer nomination to satisfy cl.187.223(2).

17. Since the Tribunal has affirmed the employer nomination decision under review there is no approved employer nomination to satisfy cl.187.223(2) and the visa applicants do not meet cl.187.223(2).

18. Therefore, cl.187.223 is not met.

19. 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.

20. Mrs Sukhwant Kaur, Master Jasmeet Singh and Miss Komalpreet Kaur were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) 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; and

    (b) made a combined application with the primary applicant.

21. The secondary applicants made a combined application with the primary applicant and applied as the spouse and children and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

22. The secondary applicants do not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicants a subclass 187 visa.

    decision

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

    De-Anne Kelly
    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.