Singh (Migration)

[2020] AATA 3035

Singh (Migration) [2020] AATA 3035 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chamkor Singh
Mrs Ramandeep Kour
Ms Gurasees Kaur Khalsa

CASE NUMBER:  1804680

HOME AFFAIRS REFERENCE(S):          BCC2017/2972056

MEMBER:Cathrine Burnett-Wake

DATE:4 May 2020

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 4 May 2020 at 3:17pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – Retail Buyer – no approved business sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 187.233(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 (the Act).

2. The applicants applied for the visas on 18 August 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 (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 Retail Buyer with Caroline K Morgan Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination made by Caroline K Morgan Pty Ltd was refused.

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

7. The applicants appeared before the Tribunal on 20 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Natasha Kang, Import and Export Manager at Caroline Morgan Pty Ltd.

8. On 20 April 2020 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing by 4 May 2020. The invitation sought comments regarding the nomination made by Caroline Morgan Pty Ltd specifically:

   The application for approval of the nominated position made by Caroline K Morgan Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision and it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

   This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

   If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

9. On 4 May 2020, the Tribunal received email correspondence from the representative. It stated that the applicants wish to continue with the review and the employer has recently lodged a ‘court appeal’ for the nomination.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. 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.

13. 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.

14. The nomination made by Caroline Morgan Pty Ltd was refused by the Department and that decision was affirmed by the Tribunal. This information was put to the applicant pursuant to s359A to which the applicants representative responded that an application had been made with the Federal Circuit Court in relation to the Tribunal’s decision to affirm the nomination and the applicants wished to continue with the Tribunal application for their visas.

15. The Tribunal is therefore proceeding with the application and finds that as there is no approved nomination, cl.187.233(3) is not met.

16. 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.

17. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant subclass 187 visas to the second and third named applicants (the applicant’s spouse and child) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.