Triwal (Migration)

[2023] AATA 119

Triwal (Migration) [2023] AATA 119 (16 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Kaur Triwal
Mr Suresh Kumar Dhingra

REPRESENTATIVE:  Mr Sourabh Aggarwal (MARN: 1462159)

CASE NUMBER:  1917861

HOME AFFAIRS REFERENCE(S):          BCC2017/3642162

MEMBER:Karen McNamara

DATE:16 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(3) of Schedule 2 to the Regulations.

Statement made on 16 January 2023 at 12:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – salon manager – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal set aside – member of family unit – applicants now divorced but no evidence provided or removal of second applicant from application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 applied for the visas on 5 October 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 (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 first named applicant Mrs Amandeep Kaur Triwal (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Salon Manager under the occupation of Hair or Beauty Salon Manager (ANZSCO 142114).

5. On 29 June 2019, 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 28 May 2019, the nomination application lodged by Elegant Eyebrows Pacific Fair Pty Ltd ATF Elegant Eyebrows Pacific Fair Unit Trust, was refused by a delegate of the Minister for Home Affairs.

6. The applicants applied to the Tribunal on 4 July 2019 for review of the delegate’s decision.

7. At the hearing the applicant told the Tribunal that since the lodgement of the application for review with the Tribunal, the applicant and the second named applicant (Mr Suresh Kumar Dhingra) have divorced. The Tribunal noted that the second named applicant remains subject to this application as the applicant has not sought to remove her former husband from her application or provided evidence of said divorce.

8. On 13 December 2022, Mrs Amandeep Kaur Triwal appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nilesh Gandhre (the nominator) in the related matter for the nomination review application (AAT Case file 1915681). The related matters were heard concurrently in a combined hearing.

9. The Tribunal exercised its discretion to hold the hearing by telephone. 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 applicants. 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.

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 matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

13. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

14. 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 reg 1.13A and reg 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.

15. The nominating employer, Elegant Eyebrows Pacific Fair Pty Ltd ATF Elegant Eyebrows Pacific Fair Unit Trust, applied to the Department for approval of a nomination in relation to the position of Salon Manager under the occupation of Hair or Beauty Salon Manager (ANZSCO 142114. That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

16. Elegant Eyebrows Pacific Fair Pty Ltd ATF Elegant Eyebrows Pacific Fair Unit Trust, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1915681). On 16 January 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

17. The second named applicant (Mr Suresh Kumar Dhingra) applied on the basis of being a member of the family unit of the first named applicant (Mrs Amandeep Kaur Triwal). At the hearing the applicant told the Tribunal that she divorced Mr Dhingra “nearly 2 ½ years ago” and that she did not know why he was still included in her application. The Tribunal notes the oral evidence before it suggests that the applicants are divorced, therefore the secondary applicant in this matter would no longer be a member of the family unit of the first named applicant. However, there is no concrete evidence before the Tribunal to support the claims by Mrs Amandeep Kaur Triwal that she and Mr Dhingra have been divorced for over 2 years, nor have the applicants contacted the Tribunal seeking to have Mr Suresh Kumar Dhingra removed as a secondary applicant to this application. The Tribunal therefore continues to have jurisdiction in this matter in regard to the second named applicant. Accordingly, the application by Mr Suresh Kumar Dhingra will be determined by reference to the outcome of Mrs Amandeep Kaur Triwal’s application on remittal to the Department for consideration.

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233(3) of Schedule 2 to the Regulations.

    Karen McNamara
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.