1828845 (Migration)

[2021] AATA 3297

1828845 (Migration) [2021] AATA 3297 (19 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828845

MEMBER:Karen McNamara

DATE:19 July 2021

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 19 July 2021 at 12:27pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Workshop/Office Manager – no approved nomination – adverse information about the nominator – decision under review affirmed  

LEGISLATION

Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 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 26 May 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 (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 [named] (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Workshop/Office Manager in the occupation of Office Manager (ANZSCO 512111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations which required [the applicant] to be the subject of an approved nomination. The delegate found that the nomination lodged by [the nominating business] (the nominator) was refused by a delegate of the Minister for Home Affairs on 17 August 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, [named] could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 2 October 2018 for review of the delegate’s decision.

9. On 1 June 2021, [the applicant] appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from [name] (the nominator) in the related matter for the nomination application (AAT Case file [number]). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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 applicants were given a fair opportunity to give evidence and present arguments.

11. The applicant and nominee were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

    Non-Disclosure Certificate (s.376 of the Act) – Invitation to comment

12. At the hearing the Tribunal told the applicant that a non-disclosure certificate has been issued pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department’s case file.

13. The Department has sought to restrict the disclosure of information on the Department’s file. The reason stated for non-disclosure is that to disclose the information would be contrary to public interest because it may disclose or enable a person to ascertain the existence or identity of, a confidential source of information.   

14. The Tribunal considers that the s.376 certificate is valid and provided the applicant with particulars of the information to enable him to comment on the validity of the certificate and whether the information should be released.

15. The applicant advised that he had no problems and accepted that the certificate is valid and did not request the information to be released.

    ADVERSE INFORMATION – Invitation to comment

16. In accordance with s.359AA of the Act, the Tribunal put to the applicant information before the Tribunal that suggests there is adverse information known to the Department about the applicant. The Tribunal explained that under s.359AA of the Act, the Tribunal is required to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comment or response, be the reason, or part of the reason, for affirming that decision under review.

17. The Tribunal told the applicant particulars of the information that being [in] March 2018, the Department received allegations alleging that a named individual was facilitating payment for visa’s in the [regional] area. In regard to the nominating business and the applicant, the allegations allege that; ‘[the nominating business] is doing fake sponsorship. Owner [named] is getting money for this even employee not working there. They got $[amount] from employee. Employees paying tax + super and leftover money from his pockets……’ 

18. The Tribunal confirmed with the applicant that the Tribunal must be satisfied under cl.187.233(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.

19. The Tribunal told the applicant that this information is relevant, because it suggests that there is adverse information known to Immigration about the person who made the nomination and the applicant as a person associated with that person and there is no information currently before the Tribunal to suggest it is reasonable to disregard this adverse information. If the Tribunal relies on this information, it may not be satisfied the applicant meets the requirements of cl.187.233(4A) and as such the Tribunal may then find that the applicant does not meet the requirements for approval of the application and the decision under review may be affirmed.

20. The Tribunal invited the applicant to comment on this information. The applicant chose to respond orally and told Tribunal that he was shocked at hearing the statement. The information is totally wrong and 100% fake information. The applicant worked for the business for almost 25 months and he can’t imagine how someone can make these allegations.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

23. 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.

24. 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 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.

25. On the 24 June 2021, the Tribunal affirmed the decision refusing the approval of the nomination made by [the nominating business] in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.

26. On 29 June 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their 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 made by [the nominating business], which the Tribunal explained was relevant to the applicant meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.

27. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 13 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

28. On 13 July 2021, the Tribunal received an email forwarded at 4.28pm from the applicant’s authorised representative. The email stated as follows;

    ‘Dear Sir/Madam,

    Our client, [the applicant] received an invitation from Administrative Appeals Tribunal on 29 June 2021 to comment or respond to information regarding the recent decision to refuse to grant the [named] nominating [employer’s] Regional Employer Nomination (Permanent) visa.

    Our client has informed us that he would like to request for an extension as he has been unwell for last few days (with cold and flu) and as a result he hasn’t been able to gather the information to be able to comment on or respond to this matter.
    
    Accordingly, he would like to request for an extension for two weeks if possible so that he can gather the information and has had adequate time to prepare to comment on this matter.’

29. The Tribunal noted that the applicant did not provide medical evidence to support how ‘being unwell for last few days (with cold and flu)’ deterred his ability to respond within the fourteen-day timeframe.

30. In the circumstances, the Tribunal considers that the applicant has had sufficient time to provide comment. The Tribunal observed that by providing an extension of a further two weeks to the applicant, would likely only unnecessarily delay conduct of the review, contrary to the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act (AAT Act), which directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The Tribunal is of the view that by providing the applicant an additional two weeks to prepare and provide comment to the Tribunal’s invitation of 29 June 2021, does not achieve this objective of the functions of the Tribunal.

31. Whilst the Tribunal did not concur to an additional two week extension, having consideration to the applicant’s claim that he had been ‘unwell for last few days’, the Tribunal granted the applicant an extension of time to 15 July 2021 to respond.

32. As at the time of this decision, the review applicants have not provided the comments within the prescribed period and no further extension has sought or granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

33. At the hearing of 1 June 2021, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

34. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

35. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

36. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa.

37. In relation to the second named applicant [named], the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

38. As the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the [secondary applicant], as a member of [the applicant’s] family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.187.311 of Schedule 2 to the Regulations.

39. 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

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

    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

    (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.