SHERPA (Migration)

[2023] AATA 1736

SHERPA (Migration) [2023] AATA 1736 (5 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ang Phuti Sherpa
Mr Lhakpa Nuru Sherpa

REPRESENTATIVE:  Mr Gurvinderjeet Singh Parmar (MARN: 1808842)

CASE NUMBER:  1922882

HOME AFFAIRS REFERENCE(S):          BCC2018/749536

MEMBER:Alison Mercer

DATE:5 June 2023

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 5 June 2023 at 1:02pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 14 February 2018. 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 Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required (amongst other things) that she was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, CH & CJ Pty Ltd as trustee for the CC DO Family Trust. The delegate found that the applicant did not meet cl.187.233(3) and could not meet cl.187.233 as whole or be granted a subclass 187 visa in the Direct Entry stream. Nor had she made any claims against any other stream. The delegate also refused to grant the second named applicant (the applicant’s husband) a subclass 187 visa, as he did not meet the secondary visa criteria requiring him to be a member of the family unit who held a subclass 187 visa, and there was no evidence that he met the primary visa criteria in his own right.

6. The Tribunal received a review application from the applicants on 16 August 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Gurvinderjeet Singh Parmar, as their representative and authorised recipient for correspondence.

7. On 14 March 2023, the Tribunal wrote to the applicants via their agent to invite them to attend a telephone hearing on 10 May 2023. On 21 March 2023, the applicants advised that they would attend the hearing on 10 May 2023.

8. On 22 March 2023, the Tribunal wrote again to the applicants via their agent to invite them, pursuant to s.359A of the Act, to comment on or respond to potentially adverse information held by the Tribunal. The Tribunal advised the applicants that the particulars of the information were that:

   ·at the time the applicant made her visa application on 14 February 2018, she was nominated by her employer, CH & CJ Pty Ltd as trustee for the CCDO Family Trust, as a Massage Therapist, and the second named applicant was included as a member of her family unit;

   ·the Department rejected this application on 6 August 2019 because the delegate found that the applicant did not meet cl.187.233 of Schedule 2 to the Migration Regulations as she was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that her employer’s nomination of her for the occupation of Massage Therapist had been rejected by the Department on 4 July 2019;

   ·the delegate refused to grant the second named applicant a subclass 187 visa as he did not meet the secondary visa criteria requiring him to a member of the family unit of a person who held a subclass 187 visa;

   ·the applicants applied to the Tribunal on 16 August 2019 for review of the Department’s decision to reject their subclass 187 visa applications;

   ·the Tribunal’s records indicated that CH & CJ Pty Ltd lodged an application for review of the decision to refuse its nomination with the Tribunal but that the Tribunal made a decision on 19 September 2022 that it had no jurisdiction to review the refusal decision because the company had withdrawn its review application; and

   ·accordingly, there was currently no approved nomination of the applicant by CH & CJ Pty Ltd and the decision to refuse the nomination was not under review by the Tribunal.

9. The Tribunal advised the applicants that this information was relevant to the review because, subject to their comments or response, it indicated that:

   ·the applicant was not the subject of an approved appointment made by the same employer who nominated her, as required by cl.187.233, and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.187.233 at the time of decision;

   ·the second named applicant was not the family unit member of a person who held a subclass 187 visa; and

   ·there was no evidence that they met the criteria in the Temporary Residence Transition or Labour Agreement streams of the subclass 187 visa.

10. The Tribunal further advised the applicants that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.187.233 in respect of a subclass 187 visa application lodged prior to 18 March 2018.

11. The Tribunal requested that the applicants provide their comments or response by 5 April 2023.

12. On 29 March 2023, the applicants responded to the s.359A letter to indicate that they wished to proceed with the review application and did not wish to withdraw it.

13. The applicant appeared before the Tribunal by telephone on 10 May 2023 to give evidence and present arguments.

14. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

15. The applicant told the Tribunal that the COVID19 pandemic lockdowns and restrictions affected her employer’s business very significantly, and the owners ended up selling the business to new owners, at which time her employment there ceased. Prior to that, she had been working minimal hours.

16. The applicant told the Tribunal that since then, she had continued to work at different cafes on a casual basis, but largely working full time hours. She said that her husband was also working, in the field of aged care.

17. The Tribunal discussed with her its view that due to the withdrawal of her original employer’s review application, she was not – and could not be – the subject of an approved nomination by that employer, and thus could not satisfy cl.187.233 (as a nomination by a new employer would not satisfy this clause). The applicant indicated that she understood and had discussed this with her agent, but was not sure if they now had any other options. The Tribunal acknowledged that the factors that led to her not being the subject of an approved nomination were outside her control, but noted that cl.187.233 nevertheless required that she was the subject of an approved nomination by her original employer.

18. The applicant told the Tribunal that she and her husband hoped to have as much time as possible to arrange their affairs to depart Australia, where they had lived for the last 10 years. The Tribunal indicated that, due to its present workload, it anticipated making a decision on their case in June 2023.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Nomination of a position

20. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

21. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

22. It is not disputed that at the time of the delegate’s decision, the applicant was not the subject of an approved nomination by her nominating employer, CH & CJ Pty Ltd. Nor is it disputed that there is currently no approved nomination of her by this employer, and there is no pending nomination refusal review at the Tribunal any longer.

23. Therefore, cl 187.233 is not met.

24. 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 in relation to her.

25. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 187 visa, as he does not meet the secondary visa criteria requiring him to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that he meets the primary visa criteria in his own right.

26. The Tribunal acknowledges that the factors that led to the nomination of the applicant by her original employer being refused were outside her control, that the applicants have been in Australia for 10 years, and that they are both working for new employers. However, it has no capacity to take these factors into account in assessing whether cl.187.233 is met or not, as that provision does not permit the Tribunal to waive its requirements where there are compelling or compassionate circumstances.

    DECISION

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

    Alison Mercer
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.