Sushma Paswan (Migration)

[2019] AATA 5285

Sushma Paswan (Migration) [2019] AATA 5285 (18 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Parneet Kaur Alias Sushma Paswan
Mr Jatinder Singh
Mr Princejeet Singh

CASE NUMBER:  1819365

HOME AFFAIRS REFERENCE(S):          BCC2017/361885

MEMBER:Mr S Norman

DATE:18 November 2019

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 18 November 2019 at 10:42am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nomination application refused – 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 (the Act). The Department decision was lodged with the Tribunal.

2. The applicants applied for the visas on 27 January 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 Direct Entry stream. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

5. The applicants appeared before the Tribunal on 13 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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.

8. 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 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.

9. On 17 May 2018, the related nomination lodged by Annilax Enterprises P/L, being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister. On 18 May 2018, the Department invited the applicant to comment on this information within a prescribed period. At the time and date of the delegate’s decision, no response had been received. As the nomination application had been refused, the delegate was not satisfied the applicant met cl.187.233(3); or cl.187.233.

10. The delegate also considered the applicant’s claims under the Temporary Residence stream. However, under cl.187.223(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant did not meet cl.187.223. The delegate also considered the applicant’s claims under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant did not meet cl.187.242.

11. The delegate also considered cl.187.311 (member of the family unit). However, as none of the applicants met the primary criteria for the visa, none were entitled to the visa based on their membership of the family unit of a person who had.

12. The delegate then refused to grant the applicants the Regional Sponsored Migration Scheme (Subclass 187) visa.

13. By s.359A letter dated 1 October 2019 (emailed to the authorised recipient), the Tribunal advised that it had accepted the withdrawal of the merits review application by the applicant’s nominating employer (Annilax Enterprises Pty Ltd). The applicant was advised this information was relevant because cl.187.233(3) required that the nomination made in relation to the applicant by their nominating employer had been approved. The applicant was also advised that if the Tribunal relied on this information it may find that the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The applicant was then invited to comment in writing by 15 October 2019.

14. By migration agent email of 15 October 2019, the Tribunal was advised the applicant needed to attend a Tribunal hearing ‘so her case can be assessed individually’. In a subsequent email dated 23 October 2019, the agent requested the Tribunal ‘arrange my hearing in Melbourne and let me know’; though he also stated the ‘client is not sure whether they want to take [him] along with them’, though he said he would ‘definitely let [the Tribunal] know in case [he was appointed]’ (though no such advice was received). Based on the reasons provided (being the apparent uncertainty of whether the agent would even attend the hearing), and given the Tribunal was satisfied it should be able to conduct a meaningful hearing by video conference, the request to re-schedule the hearing in Melbourne was declined.  At the Tribunal hearing, the applicants confirmed the agent was not attending the hearing.

15. Further, when discussed at hearing, the primary applicant (the applicant wife) said she arrived in Australia in December 2008 on a Student visa. They had applied for the Subclass 187 visa on 27 January 2017. They had never worked for the nominator and were not told by the nominator that the nomination merits review application had been withdrawn until after this had occurred. The nominator now does not communicate with the applicants and they feel that their predicament is not their fault. They now also want further time to find a new nominator but the Tribunal advised it understands this is not possible for this application.  

16. That being said, it is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.187.223 and cl.187.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination of a position made by a different employer.[1]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to the identically worded cl.187.233(1)(c).

17. Therefore, cl.187.233 is not met.

18. Regarding cl.187.311 (member of the family unit); as none of the applicants met the primary criteria for the visa, none were entitled to the visa based on their membership of the family unit of a person who had.

19. 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.

    DECISION

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

    Mr S Norman
    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

    (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.