Sood (Migration)

[2022] AATA 1688

Sood (Migration) [2022] AATA 1688 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rajni Sood

REPRESENTATIVE:  Mr Ettienne de Villiers Hugo

CASE NUMBER:  1915037

HOME AFFAIRS REFERENCE(S):          BCC2018/1011451

MEMBER:Karen McNamara

DATE:31 May 2022

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 31 May 2022 at 12:55pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Hair or Beauty Salon Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 Ms Rajni Sood (the applicant) 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 2 March 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of position of Hair and Beauty Salon Manager under the occupation Hair or Beauty Salon Manager (ANZSCO 142114).

5. On 22 May 2019, the delegate refused to grant the visa because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations which required Ms Rajni Sood to be the subject of an approved nomination. The delegate found that the nomination lodged by Kartar Dhaliwal Pty Ltd was refused by a delegate of the Minister for Home Affairs on 23 April 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.223(2) was not met and therefore the applicant did not meet cl.187.223 of Schedule 2 to the Regulations.

7. The applicant applied to the Tribunal on 12 June 2019 for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.

8. On 25 March 2022, the applicant appeared before the Tribunal by telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rupinder Singh Dhaliwal (the nominator) in the related matter for the nomination application (AAT Case file 1911878). The related matters were heard concurrently in a combined hearing.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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 applicant. 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. The Tribunal is satisfied that the applicant was provided a fair opportunity to give evidence and present arguments.

10. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.223.

    Nomination of a position

13. Clause 187.223 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 made as part of the current visa application.

14. 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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in reg 5.19)

    ·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.

15. On the 9 May 2022, the Tribunal affirmed the decision refusing the approval of the nomination made by Kartar Dhaliwal Pty Ltd in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.223(2) and as such cl.187.223 is not met.

16. On 12 May 2022, 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. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Kartar Dhaliwal Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.187.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.187.223(2) is not met.

17. On 26 May 2022, the Tribunal received an email from the authorised representative advising as follows;

    ‘ Thank you for your email, inviting our client to respond to/ comment on the Tribunal’s correspondence below, by today, 26 May 2022.

    We are instructed to advise that our client, Ms Sood, understands the nature of the adverse information and the impact that this information will have on her visa review application. She, nevertheless, does not wish to withdraw her application and will simply wait for the Tribunal to finalise her application.’

18. At the hearing of 25 March 2022, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in her case, her visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

19. 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.187.223(2) of Schedule 2 to the Regulations.

20. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.223 of Schedule 2 to the Regulations is not met.

21. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Karen McNamara
    Member

    
    
    

    ATTACHMENT A

    187.223(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 1114C (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 to which the application relates is located in regional Australia.

    (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.