Rupinderjot Kaur (Migration)

[2019] AATA 2169

Rupinderjot Kaur (Migration) [2019] AATA 2169 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms  Rupinderjot Kaur
Mr Manpreet Singh
Mr Fateh Armaan Singh
Miss Agam Roop Kaur

CASE NUMBER:  1833764

HOME AFFAIRS REFERENCE(S):           BCC2017/1724272

MEMBER:Warren Stooke AM

DATE:10 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 April 2019 at 2:28pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nominated position of Hairdresser ANZSCO 391111 – not approved standard business sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, r 1.13, cls 186.223, 186.311

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 on 29 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 May 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement 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 Hairdresser ANZSCO 391111.

5. The delegate refused to grant the visas given that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by Reet Mann Pty Ltd was refused by the delegate.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Hairdresser – ANZSCO 391111.

9. On 12 February 2019, the Tribunal invited the applicant to provide information in relation to the delegate’s refusal of the nomination by Reet Man Pty Ltd, which was required to be received by 26 February 2019. The invitation stated:

   ·Evidence that you have an approved nominating sponsor. In regard, the Tribunal notes that the nomination lodged by Reet Mann Pty Ltd for the appointment of Hairdresser – ANZSCO 391111 was refused by the Department on 19 September 2018.

10. As at 26 February 2019, the applicant had not responded to the Tribunal’s invitation for evidence concerning the applicant’s status of an approved standard business sponsor. As such, the Tribunal’s correspondence explained that if you did not provide the information within the prescribed period, or a period as extended, you would lose your right to present evidence and arguments at a Tribunal hearing.

11. On 5 March 2019, the Tribunal made a decision in relation to the application of an appeal against the delegate’s decision in Case No. 1828511 concerning the nominated position of Hairdresser [ANZSCO 391111] for Reet Mann Pty Ltd, which was to affirm the decision of the delegate.

12. On 26 March 2019, the Tribunal invited the applicant to provide information in relation to the delegate’s refusal of the nomination by Reet Man Pty Ltd, which was required to be received by 9 April 2019. The invitation contained the following information:

    ·“The application for approval of the nominated position made by Reet Mann Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought review of this decision but it was recently affirmed by the AAT on 5 March 2019. (see attached copy of this decision). This means that the nominator's application for the nominated position has not been approved.”

13. On 9 April 2019, the applicant provided a response to the Tribunal as follows:

    “Subject: Replying in response to an outcome received from AAT regarding the nomination application.

    Respected sir/madam,

    I, Rupinderjot Kaur, am writing this letter to express my views in response to the refusal of my nomination application of Hairdresser by Reet Mann Pty Ltd (the nominator). I would like to tell you that I am working at Reet hair and beauty salon since Jan 2013 till now. I am working as a hairdresser and performs the duties of manager as well such as answering phone calls of clients and distributors, make appointments, cash handling and deposit etc.

    I would like request you not to refuse my nomination as a Hair dresser and Subclass 186 visa application as I follow all the instructions and conditions imposed on my visa application. Moreover, I would like to add on that I perform all the roles and responsibilities of Hair dresser not the beautician at Reet hair and beauty salon. I booked appointment for beauty clients but never provide them any service as a beautician.

    My workplace relocated to new place in July 2016 when my employer bought business at Niddrie, Victoria. We open with huge amounts of products and many other hair services as well with new business. My employer brought all stocks and other materials from their Ballarat shop to Niddrie shop at the time of relocation. This is the main reason why they did not have enough receipts of proof of purchase. They also bought products from Facebook, marketplace, Gumtree etc. whenever anyone was closing business because products are available at reasonable prices at such places, these types of sales mostly done by cash.

    In regards to electricity bill which was minimal because we shared the bill with other outlets in the Arcade and we also tapped into solar power from panels installed by the arcade management. Hence, there was a very little amount to pay at the end by my employer.

    I hope the upper-mentioned reasons are sufficient enough for not to refuse my nomination as a Hairdresser by Reet Hair and beauty salon. I worked with passion, honesty and full enthusiasm during my whole employment period, and will continue to do so as a Hairdresser. Finally, requesting you again not to refuse my Subclass 186 visa application along with my nomination as a Hairdresser. Thanking you”

    Nomination of a position

14. Clause 186.223 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 that was required to be made as part of the current visa application.

15. 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 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.

16. The Tribunal has considered the response by the applicant to the Tribunal’s invitation to respond to the Tribunal’s decision in Case No. 1828511 concerning the nominated position of Hairdresser [ANZSCO 391111] for Reet Mann Pty Ltd, which was to affirm the decision of the delegate. The Tribunal is of the view, that the applicant has not satisfied the Tribunal that she has an approved standard business sponsor that employs the applicant as a Hairdresser and thereby cl.186.223(2) has not been met.

17. On the basis that the applicant does not meet cl.186.223(2) the Tribunal is satisfied that cl.186.223 has not been met.

18. Therefore, cl.186.223 is not met.

19. On the basis that the primary applicant has not satisfied cl.186.223, the Tribunal finds that the secondary applicants do not meet the requirements of cl.186.311.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.223(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 1114B(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 is still available to the applicant.

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.