Sukhwinder pal (Migration)

[2022] AATA 4692

Sukhwinder pal (Migration) [2022] AATA 4692 (23 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhwinder pal
Mrs Sapna
Ms Mayra Bhardwaj

REPRESENTATIVE:  Mr Hargobind Singh Jholl

CASE NUMBER:  1904787

HOME AFFAIRS REFERENCE(S):          BCC2017/2317837

MEMBER:P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 November 2022 at 10:32 am (WA time)

DATE OF WRITTEN RECORD:                12 December 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions under review.

Statement made on 12 December 2022 at 3:56pm

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

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

APPLICATION FOR REVIEW

1. This is an oral decision in the application of Mr Sukhwinder Pal, Mrs Sapna and Ms Mayra Bhardwaj in file number 1904787. The decision of the Tribunal is to affirm the decision under review to refuse the visa applications of Mr Sukhwinder Pal and Mrs Sapna and Ms Mayra Bhardwaj.

   STATEMENT OF DECISION AND REASONS

2. The reasons for my decision are as follows.

3. Mr Sukhwinder Pal, Ms Sapna and Ms Mayra Bhardwaj applied for a Regional Employer Nomination (Class RN) visa on 29 June 2017. The subclass that applied to the RN class of visa was a subclass 187 visa and that is in the Regional Sponsored Migration Scheme.

4. Mr Pal applied for the visa to work in the nominated position of Cook, which was the subject of a nomination by Yashpal Food Pty Ltd, his employer at the time. Mrs Sapna and Ms Mayra Bhardwaj made their visa applications on the basis of being members of the family unit of Mr Pal.

5. The delegate refused to grant the visas because Mr Pal did not meet clause 187.233(3) of Schedule 2 to the Regulations because there was no approved nomination.  Mr Pal made application to this Tribunal to review that decision.

6. Mr Pal appeared before the Tribunal today to give evidence and present arguments. The hearing was conducted by telephone. I am satisfied that Mr Pal was not prejudiced by the hearing being conducted by telephone.  I decided to have the hearing by telephone, taking into account the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter proceeding if the hearing was not conducted by telephone.  I am satisfied that Mr Pal was given a fair opportunity to give evidence and present arguments.  Mrs Sapna and Ms Bhardwaj, while invited to the hearing, declined to attend.

7. On 1 February 2019 the Tribunal received an application for review of a decision of the Department of Home Affairs to refuse the nomination in respect of Yashpal Foods Pty Ltd. 

8. On 18 May 2022 Yashpal Foods Pty Ltd withdrew the review application related to the Department’s decision to refuse the nomination. What this means for Mr Pal is that the decision of the Department of Home Affairs on 14 January 2019 to refuse the nomination for the position of cook to be filled by Mr Pal stands.  It means that the nomination is not approved.

9. On 9 September 2022 the Tribunal wrote to Mr Pal advising him that the nomination applied for by Yashpal Foods Pty Ltd was not approved. The Tribunal explained that the information that there is no approved nomination in which Mr Pal is the nominee for the purpose of clause 187.233 may lead the Tribunal to find that the criterion is not met. Mr Pal was invited to give comments or respond in writing to that information and advised that information would be the reason or part of the reason for the Tribunal affirming the decision under review.

10. Mrs Sapna, Mr Pal’s wife, and Ms Mayra Bhardwaj, Mr Pal’s daughter, were also affected by the decision and the invitation on 9 September 2022 invited them to comment or respond to the information that because Mr Pal was not the holder of a subclass 187 visa they were unable to meet the secondary criteria for the grant of their visas, which was clause 187.311, which requires that they are members of the family unit of a holder of a subclass 187 visa.

11. Mr Pal requested and was granted a few extensions of time in which to comment or respond to that information. The Tribunal granted each of the extensions of time ultimately requiring him to respond or comment or require all of the applicants to respond or comment by 19 October 2022.

12. On 29 September 2022 the Tribunal invited Mr Pal, Ms Sapna and Ms Bhardwaj to attend a hearing by telephone with the Tribunal on 18 November 2022 and that hearing was postponed until today. Mr Pal attended the hearing today to give evidence and present arguments.

13. Mr Pal told the Tribunal that he had done nothing wrong that resulted in him not being the subject of an approved nomination. Mr Pal expressed his disappointment at being reliant on a third party for the approval of his visa and had hoped to obtain other employment and a further nomination upon which he might be able to rely in order to satisfy the criteria for the visa. Mr Pal agrees that there is no approved nomination to which his application applies.

14. The Tribunal acknowledges that Mr Pal is subject to the actions of his employer in having their nomination approved. There is no question that Mr Pal has done anything wrong or that there is any reason other than not having an approved nomination that he would not otherwise satisfy the criteria for a visa or no indication that he might not satisfy the criteria for some other visa to which he might meet the criteria. The Tribunal is unable to give advice in this regard and has suggested that Mr Pal and his family obtain advice either from the Immigration Department or from a migration agent as to what his options are.

15. In the application before me the Tribunal has no discretion, if the nomination for the position that Mr Pal has applied for has not been approved, then Mr Pal’s application is bound to fail. In this case Yashpal Food Pty Ltd nominated the position of cook, which is the position to which Mr Pal’s application relates, and sought approval to meet the requirements of subparagraph 5.19(4)(h)(ii).  That is the nomination in clause 187.233(1).

16. That application for nomination for approval was not approved and is not approved and Mr Pal is unable to meet the criteria in clause 187.233(3) that the Minister has approved the nomination. 

17. Because Mr Pal does not meet the criteria for the visa I must affirm the decision under review.

18. In respect of the applications of Mrs Sapna and Ms Mayra Bhardwaj I also must affirm the decision under review because they are not members of the family unit of a person who holds a subclass 187 visa and they do not meet the requirements in clause 187.311 of schedule 2 to the Regulations and those decisions must also be affirmed.

    DECISION

19. The Tribunal affirms the decisions under review.

    P. Maishman
    Member