1410142 (Migration)

[2015] AATA 3843

1410142 (Migration) [2015] AATA 3843 (9 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jide Sil-Ayen Ladiocan

CASE NUMBER:  1410142

DIBP REFERENCE(S):  BCC2013/2142356

MEMBER:Denise Connolly

DATE:9 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 09 December 2015 at 1:31pm

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 Immigration to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 19 December 2013. 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 the applicant. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Residential Care Officer.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination referred to in cl.187.233(1) was not approved.

6. The applicant was represented in relation to the review by her registered migration agent.

7. On 17 August 2015 the Tribunal sent to the applicant an invitation to give evidence and present arguments at a hearing to be held on 7 September 2015. The Tribunal advised that it was unable to make a favourable decision on the information before it. On 28 August 2015 the applicant’s representative wrote to the Tribunal to advise that the applicant had declined the hearing invitation. The Tribunal is satisfied the applicant is aware that in declining the hearing invitation the matter may be decided without any further action to allow or enable the applicant to provide further evidence.

8. On 12 November 2015 the Tribunal wrote to the applicant inviting her to comment or respond to information it considered would, subject to her comments or response, be the reason or part of the reason for affirming the decision. The applicant did not respond. Accordingly the Tribunal has decided to proceed to make its decision without taking further steps to obtain the information.

9. 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

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination).  The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant was the nominator in the application for approval

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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.

12. On 11 November 2015 the Tribunal affirmed the decision refusing the approval of the nomination of a position made by the Corporation of the Franciscan Sisters of the Heart of Jesus (QLD) in respect of the applicant.

13. On 12 November 2015 the Tribunal wrote to the applicant pursuant to s.359(A) of the Act. The letter invited the applicant to comment on or respond to information which the Tribunal considered would, subject to her comments or response, be the reason or part of the reason for affirming the decision under review.  The information related to the Tribunal’s decision to affirm the decision not to approve the nomination application made by the Corporation of the Franciscan Sisters of the Heart of Jesus (QLD). The Tribunal explained this was relevant to meeting cl.187.233(3) which requires the nomination to be approved.

14. The invitation was sent to the authorised representative at last address provided in connection with the review and advised that, if the comments were not provided in writing by 7 December 2015, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if the applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to its decision without taking further steps to obtain the comments.

16. As the nomination made by the Corporation of the Franciscan Sisters of the Heart of Jesus (QLD) for the position has not been approved the Tribunal finds that the applicant does not meet cl.187.233(3). 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.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Denise Connolly
    Member