1500025 (Migration)

[2016] AATA 3308

1500025 (Migration) [2016] AATA 3308 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Beate Agnes Kangler
Mr Berthold Rudiger Kangler
Master Johann Michael Kangler

CASE NUMBER:  1500025

DIBP REFERENCE(S):  BCC2014/1857287

MEMBER:Jennifer Ciantar

DATE:23 February 2016

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 23 February 2016 at 12:25pm

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 30 July 2014. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of corporate services manager. 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 visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because there was no approved nomination.

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. 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.

8. 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.

9. On 25 January 2016 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. This information was that the information that the nomination had been refused by the Department on 10 November 2014 and the Tribunal’s records indicate that Cerlibo Pty Ltd had not lodged an application for review of the refusal decision. There is no evidence of an approved nomination.

10. The invitation was sent to the applicants at the last address provided in connection with the review and advised that if the comments were not provided in writing by 10 February 2016, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. The review applicants have 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 review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

12. The Tribunal notes that on 16 January 2015 the applicants provided many documents and a submission about the activities of Cerlibo Pty Ltd, which appear to be relevant to the refusal of the nomination. The applicants also provided the Tribunal with copies of the decisions to refuse the nomination and to refuse the grant of the Subclass 187 visa. However, the application for review lodged with the Tribunal clearly states that the decision for review is the refusal of the Subclass 187 visa. As noted, there is no record that a review of the refusal of the nomination has been sought and there is no evidence before the Tribunal that there is an approved nomination in respect of the position to which the Subclass 187 visa application relates.

13. The Tribunal finds that the nomination application lodged by Cerlibo Pty Ltd in respect of the position of Corporate Services Manager has not been approved. Therefore the visa application does not meet the requirement in cl.187.233(3). Therefore, cl.187.233 is not met.

14. 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.

15. In relation to the secondary visa applicants, as the first named applicant does not meet the primary criteria in cl.187.233 the Tribunal cannot be satisfied that the secondary visa applicants meet the requirements for the visa class. Therefore the decision in respect of the secondary visa applicants must also be affirmed.

    DECISION

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

    Jennifer Ciantar
    Member