Thakur (Migration)

[2020] AATA 3875

Thakur (Migration) [2020] AATA 3875 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arun Thakur
Mrs Minal Thakur
Miss Ayra Thakur

CASE NUMBER:  1824313

HOME AFFAIRS REFERENCE(S):          BCC2016/3831298

MEMBER:De-Anne Kelly

DATE:13 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 13 July 2020 at 11:22am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – no approved nomination – members of the family unit – decision under review affirmed   

LEGISLATION

Corporations Act, s 601
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.233, 187.311

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 10 August 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 (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, to work in the nominated position of cook.

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 on 10 July 2018 a delegate of the Minister refused the employer nomination by U N Holdings Pty Ltd being the application referred to in cl.187.233(1).

6. The applicants appeared before the Tribunal on 24 June 2020 to give evidence and present arguments. The applicants were represented by their registered migration agent Ms Athina Stephanou until the hearing when the applicants self-represented.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicants meet cl.187.233(3) of the Regulations which provide as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

9. 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.

10. 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.

11. After the delegate of the Minister refused the employer nomination, the nominator lodged a review application with the Tribunal. The Tribunal found U N Holdings Pty Ltd was deregistered on 6 October 2019 and there was no legal entity under s.601 AD (1) of the Corporations Act and therefore it ceased to exist. It followed that there was no longer a person who has standing to apply for, or continue with, an application for review. The Tribunal found on 12 February 2020 it no longer had a valid application for review and had no jurisdiction in the matter. Therefore, the original decision to refuse the employer nomination stood and there was not an approved employer nomination.

12. The Tribunal invited the applicants to a hearing on the 24 June 2020 as it considered this case suitable for a telephone hearing. 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 given a fair opportunity to give evidence and present arguments. The applicant was advised as follows;

    You are invited to appear by telephone before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. 

    To help slow the spread of COVID-19 (coronavirus), the AAT has not been holding face to face (in person) hearings since Monday, 23 March 2020 and is currently closed to all visitors until further notice.  As we are not holding in-person hearings at the AAT, we are arranging for you to appear by telephone.  We will call you at the specified date and time.

13. The Tribunal explained under s359AA of the Migration Act that the applicant did not have an approved employer nomination for the reasons above. The Tribunal gave the applicant three options to respond to this concern; the hearing could be adjourned; a written response could be made in 14 days or the applicant could respond in the hearing, but this would not prevent him making a written submission in 14 days.

14. The applicant stated that he had waited a long time for the decision on the nomination to be made. He was a good chef and had plans for the future. He had been the sole chef and the owner had been depressed when the application was refused as he can’t hire someone else. He has a wife and daughter and what could he do now. The Tribunal accepted the statements the applicant had made but it was a mandatory requirement that there was an approved employer nomination. The applicant did not request an adjournment or extension of time. The applicant was offered a further 14 days to make written submissions. There has been no further communication from the applicants.

15. The Tribunal accepts that these decisions can have a major impact on the lives of the applicants and their families however it is duty bound to consider the legislation and, in this case, there is no approved employer nomination to satisfy cl.187.233(3).

16. Therefore, cl.187.233 is not met.

17. 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.

18. Mrs Minal Thakur and Miss Ayra Thakur were secondary applicants who made a combined application with the primary applicant for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa and sought to satisfy cl. 187.311 of Schedule 2 to the Migration Regulations 1994. The delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the visa application. This clause provides as follows;

    187.311
    The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)made a combined application with the primary applicant.

19. Mrs Minal Thakur and Miss Ayra Thakur as the secondary applicants, applied as the spouse and child and therefore as a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa. Therefore, the primary applicant is not a person who holds a Subclass 187 visa and the secondary applicants are members of the family unit of a person, the primary applicant, who does not hold a Subclass 187 visa. The secondary applicant therefore does not satisfy cl 187.311(a) and do not satisfy cl.187.311.

20. Mrs Minal Thakur and Miss Ayra Thakur do not meet cl.187.331.

    DECISION

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

    De-Anne Kelly
    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.