1803492 (Migration)

[2020] AATA 5481

1803492 (Migration) [2020] AATA 5481 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803492

MEMBER:Alan McMurran

DATE:30 October 2020

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 30 October 2020 at 4:55pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nominated position no longer exists – applicant no longer employed in the business – position made redundant due to natural disaster – effects of COVID-19 pandemic – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 2A, 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.212, 187.233

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 lodged 9 February 2018 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 (the Act).

2. The applicants applied for the visas on 26 August 2015. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of [Position 1] (ANZSCO [number]).

   Department Decision

5. The delegate refused to grant the visas because the applicant did not meet cl.187.212 of Schedule 2 to the Regulations, because the delegate found the nominated position no longer existed, as the applicant was no longer employed in the business. Therefore, the position to which the application relates will not be available to the applicant.

   Tribunal Hearing

6. The primary applicant appeared before the Tribunal by telephone, on Friday, 30 October 2020, and in accordance with the Tribunal’s COVID-19 protocol, to give evidence and present arguments.

7. The applicant was not represented for the review and appeared for herself and the secondary applicants, who are members of the applicant’s family.

8. For the following reasons, the Tribunal has concluded that the application under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of the Regulations, and, r.187.212.

10. The Tribunal has available for consideration the Department’s file, and the Tribunal’s file, made available electronically. The Tribunal also has the written submission from the applicant provided to the Tribunal by email on 8 September 2020.

11. That written submission from the applicant to the Tribunal officer states:

    “8 September 2020

    Dear [Officer name],
    Following your email dated 25 August 2020 relating to our application review, I am writing in
    response to provide information that will support our application and for further consideration
    from your side.
    On 09 February 2018 my RN 187 Regional Sponsored Migration Scheme application was
    refused as the position referred to in my application was no longer available and employment
    could not be obtained by the grant of visa. I was unable to continue with my employment at that
    time as my role has been made redundant due to Cyclone Debbie’s destructions that caused
    [Employer 1] to shut down and closed the [site] for 18 months. Since we love
    Australia I continued to source new employer and moved from [that region] to Sydney and
    worked at [Employer 2] until I experienced racial discrimination on the job that pushed me
    to resigned and look for a regional employer. However, pandemic hits the hospitality and airline
    industry and I was unable to secure a new employer at the regional area. My husband who is
    currently overseas and works with [a related] industry has been affected by the pandemic as
    well.
    My family relocated to Australia in February 2014 and my [children] have spent most of their life
    here in Australia. [One] is currently [school grade] and [another] is currently [school grade] and
    [they] are doing well at school. We’re currently experiencing financial hardships due to pandemic
    but supported by my savings and assurance from my close aged and retired landlord and
    godparent of my son that provided us with housing. I sincerely request that our application
    review can be considered due to the humanitarian ground as my children have spent their years
    and studies in Australia. That I and my family will not be a burden in the society of Australia and
    will become a good citizen given the opportunity.
    [Officer name], I sincerely request that if a decision is not made yet may I request an extension for us
    to stay in Australia due to ongoing pandemic and global travel restrictions.
    Thank you for your consideration.
    Respectfully,
    [Signed by the applicant]

    Phone: [number], Email: [address]”

12. Following the applicant ‘s hearing response on 28 October 2020, accepting the invitation to attend the Tribunal’s hearing, no other submissions were relied upon.

    Evidence at the Hearing

13. The applicant confirmed her name, current address in Sydney and date of birth. The applicant confirmed she was aware of the Department decision produced in relation to these proceedings. The applicant confirmed the secondary applicants were her husband, currently in [another country] where he works, and her [children].

14. The applicant was asked about representation. The applicant confirmed the migration agent was no longer acting. She said the agent had made the arrangements for her visa application, as representative both for herself and for the sponsor, [Business 1] trading as [Business 2].

15. The Tribunal explained the purpose of the proceedings was to review the Department’s decision to refuse the permanent residency visa. The applicant said it was a straightforward issue concerning her employment, and she said she understood that without employment, the visa application could not succeed.

16. The applicant was asked if she had sought any advice. She said she no longer had representation and felt she knew enough about her application and the background and all the relevant documents which had been submitted, to deal with the application herself. She said she had received some advice in about August 2020, from the previous representative, concerning the Tribunal’s invitation to provide information under section 359(2) of the Act. The applicant said the advice, and the response from the agent was “not what I expected”.

17. The applicant was asked if she had any further submissions or documentation she wished to present. She said that she has provided all the documents for consideration and that there is nothing further that she needs to provide. She said she could provide personal references concerning herself and the children if required but did not seek to adjourn the proceedings when asked, although she was “not sure”, she was ready to proceed.

18. The Tribunal explained its obligations under section 2A of the Act and that it proposed to continue the proceedings, as there appeared to be no reason not to do so, and that it would determine the matter on the available information together with consideration of the matters discussed in the hearing.

19. The Tribunal enquired of the applicant about her work history. She said she came to Australia in 2014, having been transferred by her previous employer, [Business 3], which was the owner of the recognised brand name, [Business 2], used in relation to a number of sites worldwide. The applicant said she had been working at the head office in [Country 2], before being transferred to a [site] in [Country 3] in her [Position 1] role. She said she was asked to return to [Country 2] for a short period before relocating to Australia to take up the role of [Position 1] for [Employer 1], a [site] newly acquired in 2013 by [Business 3].

20. The applicant explained that the [site] was being refurbished, having been closed for approximately 12 months in 2013. She said she was initially engaged [in Position 2], and then [continued that role] on an ongoing basis. She said she retained the role from about November 2013 when appointed, entering Australia in February 2014 after being issued a Subclass 457 visa. She said the visa was valid until November 2017.

21. She said in March 2017, Cyclone Debbie struck the [site] which resulted in its closure. She said she was kept on for a [period] and then was made [redundant] in November 2017. She said she was aware the employer had informed the Department that her employment had been terminated in late 2017. She said before being made redundant, the employer had no other [Position 1] positions available in Australia at that time. It had offered to relocate her overseas, but the applicant said she preferred to remain in Australia. The Tribunal notes that on 3 January 2018, the applicant’s previous employer did advise the Department that the employment was not continuing.

22. She said she applied to other prospective employers in Australia and was recruited by [Business 4] to work at one of its properties in Sydney, [Employer 2]. She said she was granted a further 457 visa on 8 May 2018, sponsored by [Business 4], to work in the [Position 1] role. A nomination by [Business 4] was approved on 16 March 2018.

23. The applicant said she left her employ with [Business 4] of her own accord in about November 2019. She said she had not worked since leaving her employment with [Business 4], noting the 457 visa for that employment ended on 16 March 2020. The applicant said she had been looking for other employment since that time, but unsuccessfully.

24. She said searching for new sponsors and employment had been made more difficult due to the pandemic and a shortage of available work [as Position 1]. She said she would prefer to remain in Australia and obtain similar work if she could. She referred to that as her “humanitarian ground” in her written submission.

25. The Tribunal put to the applicant under section 359AA of the Act that as her employment in the nominated role of [Position 1] for [Employer 1], where she had been working previously, had been terminated when she was made redundant, and the position was no longer available, that would be the reason or part of the reason for affirming the Department’s decision under review not to approve the Subclass 187 visa in the Direct Entry stream.

26. The applicant said she understood and had been discussing her options with her family about returning home but was still hoping to find an alternative sponsor for a similar role in Australia. She referred to her children having a better education in Australia and wishing that could continue, and expressing concern that having the visa refused might prejudice her in making any further applications.

27. The Tribunal responded that provided the applicants complied with the terms of any temporary visa, including any Bridging visas granted, the refusal was not the same as having a visa cancelled and she would not be prejudiced in making any further valid applications because of these proceedings.

    Employment will be provided

28. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application.

29. Clause 187.233 (5) further requires that the position nominated is still available to the applicant.

30. The Tribunal finds it is satisfied on the information provided that the nominated position of [Position 1], sponsored by [Business 1] is no longer available, and will not provide the applicant with the employment referred to in the related nomination application. The Tribunal notes from the evidence the applicant declined any further employment with the nominator, [Business 1] by its parent, [Business 3], outside Australia and left its employ from the nominated position, having been made redundant.

31. The Tribunal finds following the submissions from the applicant, that there is no evidence that the criteria in either clause 187.212 or 187.233 (5) can be met. The Tribunal is satisfied on her evidence, that the applicant is no longer employed by the nominating sponsor/employer in the role nominated. The Tribunal is further satisfied that the applicant will not be provided the employment referred to in the application, and that the position of [Position 1] with the sponsor is no longer available to the applicant. The application cannot be “transferred” to another role with another employer, and in any event, there is no other application underway by the applicant for another visa, either before the Department or pending with the Tribunal under review, this being her only current application.

32. The Tribunal finds therefore, that cl.187.212 is not met. The Tribunal also finds cl.187.233 (5) is not met.

    Secondary Applicants

33. The Tribunal finds that the secondary named applicants are the spouse and children of the applicant and members of the applicant’s family unit.

34. The Tribunal further finds however that the secondary applicants are not members of the family unit of a person (the primary review applicant) who satisfies the primary criteria, as the primary review applicant does not meet the stated criteria. As all criteria must be satisfied at the time of decision, the applications by the secondary applicants must also fail.

35. 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

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

    Alan McMurran
    Member