Sahota (Migration)

[2021] AATA 5618

Sahota (Migration) [2021] AATA 5618 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manpreet Kaur Sahota
Mr Navdeep Singh Ladhar

CASE NUMBER:  1931179

HOME AFFAIRS REFERENCE(S):          BCC2019/696130

MEMBER:Wan Shum

DATE:23 September 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 23 September 2021 at 10:25am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – office manager – subject of approved position nomination – related nomination application refused and no jurisdiction to review – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233(1), (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 19 June 2019. 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 Office Manager.

5. The related nomination was made by AZ Recruitment Pty Ltd (the nominator) on 19 June 2019 but was refused on 9 September 2019.

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 sought review of those decisions.

8. However, on 24 May 2021 the Tribunal, differently constituted, found that it did not have jurisdiction to review the decision in respect of the nomination.

9. For the following reasons, the Tribunal has concluded that this matter should also be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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.

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 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.

13. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Office 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”.

14. As set out above, the Tribunal (differently constituted) found that it did not have jurisdiction to review the delegate’s decision not to approve the nomination. Given this, the position to which this application relates is not the subject of an approved nomination.

15. An email was sent to the applicants on 31 August 2021, inviting them to comment on that information, explaining that the relevance of the information was that the applicant would not meet the requirements of cl 187.233(1) and the Tribunal will affirm the decision under review. In response, the Tribunal received an email which stated the following (unedited):

    I am Manpreet kaur sahota and husband name is Navdeep singh Ladhar and my son name is vanshdeep singh Ladhar I want explain my circumstances what happens in my life .I misguided by some agents. I lost my right way for permanent residency. I couldn’t find right employer for sponsorship due to covid. I had wasted my time as well as I had 2 misscarge between these circumstances. I born baby boy in January 2021 by grace of lord jesus. Now I kindly request to you give a chance for hearing. I need more time .I shall be thankful to you for your support and have a mercy on my case.

16. The Tribunal considered the response and advised the applicant that the hearing scheduled on 22 September 2021 would proceed. During the hearing, the applicant indicated that she understood that she did not meet a requirement for the grant of the visa as the nomination had not been approved. She asked for more time to find an employer as she had some physical issues, had suffered miscarriages and now has an 8-month-old baby. The Tribunal explained that it would not allow further time as the visa could only be granted if the nomination made by AZ Recruitment Pty Ltd had been approved, but that it was not approved and the matter was finalised. The applicant indicated that she understood.

17. In these circumstances, the Tribunal finds that cl 187.233(3) is not met. Therefore, cl 187.233 is not satisfied and the decision under review must be affirmed.

    decision

18. 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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.