Ravneet Kaur (Migration)

[2021] AATA 5532

Ravneet Kaur (Migration) [2021] AATA 5532 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ravneet Kaur

CASE NUMBER:  1837831

HOME AFFAIRS REFERENCE(S):          BCC2017/3973403

MEMBER:Karen McNamara

DATE:30 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 30 August 2021 at 2:05pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – café or restaurant manager – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

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 application by Ravneet Kaur (the applicant) for a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 October 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, Ms Ravneet Kaur (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

5. The decision record provided to the Tribunal, records that the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required Ms Ravneet Kaur to be the subject of an approved nomination. The delegate found that the nomination lodged by Saini Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 6 November 2018.

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 applicant applied to the Tribunal on 24 December 2018 for review of the delegate’s decision. A copy of the delegate’s decision was provided to the Tribunal.

8. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

11. 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.

12. 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 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.

13. On 6 August 2021, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 9 September 2021 at 11:30 am. The Tribunal notes that at the time of this decision the applicant has not responded to this invitation.

14. On 13 August 2021, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to her comments or response, be the reason or part of the reason for affirming the decision under review. 

15. The information related to information before the Tribunal that shows on 1 June 2021, the Tribunal affirmed the Department's decision not to approve the nomination in relation to the applicant made by the nominating employer, Saini Pty Ltd.

16. The Tribunal’s letter of 13 August 2021 additionally stated the following;

    ‘ The above information is relevant because cl.187.233(3) requires that the nomination

    made in relation to you by your nominating employer has been approved.

    If the Tribunal relies on this information, it may find that the nomination in relation to
    you has not been approved and consequently the decision under review would be
    affirmed. You must have a related nomination to be able to be granted the visa.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 27 August 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 27 August 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 27 August 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 6 August 2021.
    Please note, however, that if you do not respond to this letter within the date
    specified or within any extended timeframe, you will lose your right to attend the
    scheduled hearing and it will be cancelled. The Tribunal will proceed to make a
    decision on the review without taking any further action to obtain your views on
    the information.’

17. This invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by        27 August 2021, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act.

18. As at the time of this decision, the review applicant has not provided the comments within the prescribed period and no extension has been sought or has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

19. The Tribunal has carefully considered whether to afford additional time to the applicant to provide the information requested in the s.359(a) invitation, or to provide further material in support of her application for review.

20. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

21. To date, the applicant has not provided comment and has not made contact with the Tribunal to indicate information is forthcoming.

22. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicant’s comments.

23. 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.

24. 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.

25. 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

26. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    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

    (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.