1830217 (Migration)

[2021] AATA 5587

1830217 (Migration) [2021] AATA 5587 (14 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1830217

MEMBER:Michelle East

DATE:14 October 2021

PLACE OF DECISION:  Perth

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

Statement made on 14 October 2021 at 12:15pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cafe or Restaurant Manager – no approved nomination – employer ceased operations – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359A
Migration Regulations 1994, rr 1.13A, 1.13B; Schedule 2, cls 187.233, 187.311

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 10 February 2017. 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cafe or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination lodged by the nominator was not approved.

6. The applicants appeared before the Tribunal on 14 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [the second-named applicant].

7. 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 applicant. 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 applicant was given a fair opportunity to give evidence and present arguments. The Tribunal also asked the applicant at the hearing if she was happy to proceed by telephone and she confirmed that she was.

8. For the following reasons, the Tribunal has concluded that the decision 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 cl.187.233.

   Nomination of a position

10. 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.

11. 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.

12. On 13 September 2021 the Tribunal wrote to the applicant pursuant to section 359A of the Act with details of the following information:

    On 13 September 2018, the Tribunal received an application for review of the decision of the Department of Home affairs to refuse a nomination in respect of [the named employer].  On 8 June 2021, the Tribunal affirmed the Department’s decision to refuse the nomination.  Consequently, the decision made by the Department of Home Affairs on 27 August 2018, to refuse the nomination stands’.

13. The applicant was advised that the information was relevant to the review because in order to satisfy the requirements of clause 187.233(2) of Schedule 2 to the Regulation, it requires the applicant to have a nomination which has been approved by the Minister.

14. On 26 September 2021 the second-named applicant responded on behalf of his wife as follows:

    We know the situation, as my wife’s employer permanently shut down his business but we still want to come to hearing to give ours opinion. (sic)

15. The Tribunal asked the applicants if they had anything further to add.  The applicant explained how her son had been born with a [medical condition] and that he would not be accepted by her community in India.  She said he has had two surgeries and is awaiting a further two to correct the condition.  She wanted to know if she was able to stay in Australia until after the surgery.

16. The Tribunal has significant sympathy for the applicant and her family in these circumstances.  Unfortunately, it does not have any discretion to make a favourable decision in this case.

17. Based on the evidence before it, the Tribunal is not satisfied at the time of its decision that there is an approved nomination. Therefore cl.187.233(3) is not met.

18. 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.

19. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second and third applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.187.311 which requires that the applicants must be a member of the family unit of a person who, having satisfied the primary criteria is the holder of a Subclass 187 visa.

    decision

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

    Michelle East
    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.