Aplod (Migration)

[2019] AATA 3113

Aplod (Migration) [2019] AATA 3113 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Devonne Lyn Aplod

CASE NUMBER:  1829794

HOME AFFAIRS REFERENCE(S):          BCC2018/1027372

MEMBER:R. Skaros

DATE:2 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2019 at 9:13am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – nomination not approved – nominating employer seeking approval as sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 187.233

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 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 4 March 2018. 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 Disabilities Services Officer with Frangipani Gentle Care Group Homes Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by Frangipani Gentle Care Group Homes Pty Ltd in relation to the applicant was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the relevant nomination was refused by the Department on 23 August 2018.

7. On 12 February 2019 the Tribunal wrote to the applicant requesting information about whether there is an approved nomination or a pending application for review of the decision to refuse the nomination. On 26 February 2019, the applicant wrote to the Tribunal requesting an extension of time to provide a response. The Tribunal wrote to the applicant on 27 February 2019 granting the extension of time and informing the applicant that her response should be received by 16 March 2019.

8. On 16 March 2019, the Tribunal received a statement indicating that the applicant wished the Tribunal to consider her application in the absence of a nomination appeal and that she is suitable to apply for a new nomination. Details of the applicant’s education and employment were provided. It was also stated that the employer was building up their capacity to reapply for another nomination so that the applicant can apply for a new visa.

9. Prior to the hearing, the Tribunal received a further statement detailing the applicant’s employment and desire to remain in Australia to gain further experience. It was stated that the nominating employer, Frangipani Gentle Care Group Homes, did not apply for review of the nomination refusal but was making efforts to become an approved sponsor.

10. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the relevant nomination has been approved.

    Nomination of a position

13. 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. In addition, this criterion also requires that the nomination has been approved.

14. The applicant applied for the visa on the basis of a nomination of a position made by Frangipani Gentle Care Group Homes Pty Ltd, which she identified in her visa application form as having transaction reference number EGOHJCTUTY (the associated nomination). The delegate’s decision record indicates that on 23 August 2018 the associated nomination was refused by the Department.

15. On 24 August 2018, the Department sent the applicant a natural justice letter inviting her to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and the delegate made a decision to refuse to grant the visa.

16. The applicant applied for review of the decision in relation to the refusal of her visa. However, there was no record of a review of the decision refusing the associated nomination. In response to the request for further information about the status of the associated nomination, the applicant informed the Tribunal that the nominator had not applied for review of the decision to refuse the nomination.

17. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233 and the information before it which indicates she does not meet that requirement. In response, the applicant stated that is aware the nomination has been refused but is asking for time to complete her education and training and for her sponsor to provide another nomination.

18. The Tribunal explained to the applicant that, in relation to the provision requiring approval of the nomination, the Courts have indicated that only the nomination made at the time of the visa application can be relied on to satisfy the requirement in cl.187.233.[1] It noted that a new nomination which may be lodged by her employer in future would therefore not assist her in this review and that in those circumstances there would be no merit in delaying the making of the decision in her case. The applicant indicated that she is currently studying and working for the nominating employer.

    [1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application.

19. The Tribunal has had regard to the evidence before it and acknowledges that the applicant is currently working and studying in Australia. However, as explained to the applicant at the hearing, there is no provision in the legislation to consider the applicant’s circumstances. The issue before the Tribunal is whether the associated nomination has been approved. The Tribunal has had regard to the claim that the employer will lodge another nomination in future, however, as explained to the applicant at the hearing, a new nomination would not assist her in satisfying the requirement in cl.187.233(3) . For these reasons, the Tribunal has decided to proceed to a decision on the information before it.

20. The evidence before the Tribunal indicates that the nomination for the position lodged by Frangipani Gentle Care Group Homes Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

21. 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

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

    R. Skaros
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.