Timalsina (Migration)

[2023] AATA 3041

Timalsina (Migration) [2023] AATA 3041 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sailaja Timalsina
Mr Gurpreet Singh Kanda

CASE NUMBER:  2001036

HOME AFFAIRS REFERENCE(S):          BCC2019/1876524

MEMBER:Katie Malyon

DATE:14 September 2023

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 14 September 2023 at 3:28 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Cafe or Restaurant Manager – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Singh v MIBP [2017] FCAFC

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 (Cth) (the Act).

2. The applicants, Nepalese nationals Sailaja Timalsina and Gurpreet Singh Kanda, applied for the visas on 15 April 2019.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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, Mrs Timalsina is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Cafe or Restaurant Manager ANZSCO 141111 with her nominator and former sponsor Sandhu and Son Pty Ltd (the Company).

5. The delegate refused to grant the visas on the basis Mrs Timalsina did not meet cl 187.223 of Schedule 2 to the Regulations because the Company’s nomination was refused.

   The Tribunal’s s 359A letter

6. On 29 August 2023, the Tribunal wrote to the applicants inviting them under s 359A of the Act to comment on or respond to information which the Tribunal considers would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The particulars of the information are:

   ·at the time you made your Subclass 187 visa application on 15 April 2019, you declared in your visa application that you were nominated by the Company;

   ·the Company’s nomination was refused by the Department on 10 December 2019;

   ·as a consequence, the delegate refused your Subclass 187 visa application on 20 January 2020 on the basis that the Company’s nomination was not approved because you did not meet cl 187.223(2) of Schedule 2 of the Regulations;

   ·on 16 December 2019, the Company sought review of the delegate’s refusal of its nomination at the Tribunal and, subsequently, you also sought review of the delegate’s refusal of your Subclass 187 visa application;

   ·on 21 August 2023, the Tribunal accepted the Company’s withdrawal of its application for review; and,

   ·accordingly, there is currently no approved nomination by the Company in relation to you.

7. The Tribunal’s s 359A letter explained that this information is relevant to the review because, subject to the applicants’ comments or response, it indicates that the position to which their visa application relates is not the subject of an approved nomination made by the Company as required by cl 187.223(2) of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 on 14 July 2017, this is a ‘once off’ process. The applicants were invited to provide their comments or response by 12 September 2023.

8. The Tribunal is satisfied that its 359A letter was properly dispatched to Mrs Timalsina’s email address provided in the applicants’ review application lodged with the Tribunal. No response was received from the applicants in response to the Tribunal’s s 359A letter by 12 September 2023. They have not commented on or responded to the adverse information set out in the Tribunal’s s 359A letter within the timeframe set out therein. Further, no request has been received by 12 September for additional time in which to do so.

9. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the applicants are not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. Although the applicants have not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow them additional time in which to provide the evidence to support their review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Mrs Timalsina meets the relevant requirements of cl 186.223 is likely to be forthcoming, whether the applicants have had a fair opportunity to provide the information already and the fact that Departmental movements records confirm that Mrs Timalsina left Australia on 6 April 2022. The Tribunal has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

11. In the circumstances of this case, the Tribunal considers that the applicants have had sufficient time to provide the requested information or seek an extension of time in which to do so. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

12. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the primary applicant Mrs Timalsina meets the requirements in clause 187.223 of Schedule 2 to the Regulations.

    Nomination of a position

14. 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 visa application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the primary visa applicant.  The position must be the one that was the subject of the declaration made as part of the current visa application.

15. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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 those terms as defined in reg 1.13A and reg 1.13B of the Regulations), or it is reasonable to disregard any such information;

    ·the position is located in regional Australia as defined in reg 5.19 of the Regulations;

    ·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.

16. As stated above and set out in the Tribunal’s s 359A letter, the Department refused the Company’s nomination on 10 December 2019 and

    on 16 December 2019 it sought review of the delegate’s refusal of its nomination in the Tribunal.  However, the Company withdraw its nomination review application and on 21 August 2023 the Tribunal accepted the Company’s request to withdraw its application for review.  The applicants have failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its

    
    

    s 359A letter. Nor have they requested an extension of time in which to do so.

17. In the circumstances, as the nomination application made by the Company for the position of Cafe or Restaurant Manager ANZSCO 141111 for Mrs Timalsina to which the applicants’ Subclass 187 visa application relates has not been approved, it follows that Mrs Timalsina does not meet the criteria in cl 187.223(2) of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process: see, for example, Mortimer J at [90].

18. As there is no evidence before the Tribunal to indicate that Mrs Timalsina’s Subclass 187 visa application is the subject of an approved nomination by the Company, the Tribunal finds that the requirements in cl 187.223 of Schedule 2 to the Regulations are not met.

19. Mrs Timalsina 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 stream.  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.

20. The application of the second named applicant, Mr Gurpreet Singh Kanda, is based on his being a member of the family unit of a person who meets the primary criteria.  As Mrs Timalsina does not meet the primary criteria, Mr Kanda cannot meet criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse his Subclass 187 visa application must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    187.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    ©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.

    oOOo