1700895 (Migration)

[2019] AATA 3949

1700895 (Migration) [2019] AATA 3949 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700895

MEMBER:Mary Sheargold

DATE:3 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 June 2019 at 2:51pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – no approved nomination – harassment – employer applied to the Tribunal for review – failed to appear at a hearing – genuine and credible witness – did not provide any evidence corroborating her claims – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233, rr 1.13A, 1.13B, 5.19

CASES

Singh v MIBP [2017] FCAFC 105

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 and Border Protection 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 for the visa on 14 March 2016. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of [Position 1].

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments.

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 there is an approved 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. The applicant’s nominating employer, [Company 1], applied to the Department for the approval of the position of [Position 1] in respect of the applicant.  The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

12. On 26 April 2019, the Tribunal dismissed [Company 1’s] application after it failed to appear at a hearing set for 4 April 2019. As such, the decision of the Department is affirmed, and the Tribunal finds that the applicant cannot satisfy cl.187.233(3) of Schedule 2 to the Regulations.

13. Prior to the hearing, the applicant made submissions to the Tribunal indicating that she had been subjected to considerable harassment by [Mr A] of [Company 1].  The applicant alleges she was asked to pay [Mr A] [amount] in order for [Company 1] to continue to sponsor her visa application. The applicant also alleges that [Mr A] sought sexual favours from her, and that he contacted her boyfriend at the time stating that the applicant wished to end her relationship with him.  The applicant also alleges that [Mr A] contacted her at [time] one afternoon requesting she commute immediately from [City 1, Australia] to his business based in [Town 1], approximately [number] hours away, and that if she refused to come to work immediately, he would withdraw the review application in the Tribunal in relation to [Company 1’s] nomination for her Subclass 187 visa.

14. At the hearing, the applicant reiterated the allegations against [Mr A] and told the Tribunal that women working in his businesses were subjected to harassment including [Mr A] asking them to spend the night with him.  The applicant told the Tribunal that [Mr A] would sometimes appear at the business at [Town 1] at [time] while the applicant was working and that she feared for her safety at those times.  The Tribunal enquired as to whether she had reported [Mr A’s] conduct to the authorities, and she stated that she had not.

15. The applicant acknowledged that without the nomination by [Company 1] being approved, her visa application could not succeed.  The applicant told the Tribunal that she wished to fight this matter because she felt she had been treated unfairly by the Department and by [Mr A] and she wanted to be recognised for the contribution she had made to his businesses.  At the hearing, she provided additional documents setting out her carriage of significant elements of [Mr A’s] businesses such as [various tasks], as well as [other tasks].

16. The applicant told the Tribunal that she was frustrated to learn that [Company 1] had nominations for permanent residency approved for persons who never in fact worked in the businesses operated by [Mr A], while she worked tirelessly as requested by [Mr A] across all of his businesses where her own nomination and visa application were refused.  The Tribunal asked the applicant if she had contacted either the Department or Australian Border Force in relation to her allegations.  She stated that she had not because she did not see how it would assist her own visa application.  The Tribunal found the applicant to be a genuine and credible witness, though notes she did not provide any evidence corroborating her claims in respect of other workers sponsored by [Company 1].

17. The Tribunal acknowledges the significant personal hardship of the applicant during her years living and working in Australia, and understands that she feels frustrated after multiple applications for permanent visas have been refused.  At the hearing, the applicant told the Tribunal that her first marriage had ended due to her husband’s health conditions and his unwillingness to return to Australia with her when she was granted a student visa, and that her second marriage is now suffering because of the uncertainty regarding this visa application.  The applicant told the Tribunal that her second husband lives in India and that they have not seen each other since their wedding over 2 years ago.  The applicant also told the Tribunal of the significant impact of these events surrounding her visa applications on her relationship with her own family in India.  The Tribunal sympathises with the applicant for the circumstances she has found herself in.

18. However, as set out in paragraph 12 above, the Tribunal dismissed [Company 1’s] application, and so the decision of the Department to refuse the nomination application is affirmed. At the hearing, the Tribunal emphasised to the applicant that because there is no approved nomination, she cannot satisfy cl.187.233 of Schedule 2 to the Regulations, and that the Tribunal has no discretion to consider her compelling circumstances.

19. The Tribunal notes that in reaching its finding, it has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) considered the mirroring provision in cl.187.233 of the Regulations in relation to the requirement to have an approved nomination and stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

20. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.187.233 in relation to her application.  The nomination by [Company 1] was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

21. Therefore, cl.187.233 is not met.

22. 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

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

    Mary Sheargold
    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.