Bolivar (Migration)

[2020] AATA 1239

Bolivar (Migration) [2020] AATA 1239 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jocelyn Ariston Bolivar

CASE NUMBER:  2001088

HOME AFFAIRS REFERENCE(S):          BCC2018/1129551

MEMBER:Mark Bishop

DATE:16 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination Scheme (sub class 186) visa.

Statement made on 16 April 2020 at 2:16pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Mohammed v MIBP [2017] FCCA 2356

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 9 March 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition Scheme to work in the nominated position of not disclosed in delegate’s decision.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 12 December 2019 the nomination lodged by Murray College of Health Pty Ltd, being the nomination referred to in cl.186.233(1), was refused by a delegate of the Minister.

6. The applicant appeared before the Tribunal on 6 April 2020 to give evidence and present arguments.

7. The applicant was represented in relation to the review by their registered Migration Agent (MA).

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 has an approved nominating sponsor and position in which to be engaged in employment.  

   Nomination of a position

10. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

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 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 Minister approved the  nomination

12. In evidence to the tribunal the applicant advised she was aware there was no current nomination, the nomination application lodged by Murray College of Health Pty Ltd had been refuse by a delegate of the Minister, the nomination application had been refused by a delegate of the Minister and she no longer worked for the nominator employer because Murray College of Health Pty Ltd closed on 27 May 2019..

13. The MA for the applicant advised the Tribunal the nominating employer Murray College of Health Pty Ltd had shut in May 2019 and the applicant was no longer employed at that College.

14. The applicant did not provide evidence demonstrating that she was the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233 of Schedule 2 to the Migration Regulations.

15. There is no evidence before the Tribunal that the applicant is the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233 of Schedule 2 to the Migration Regulations.

16. Hence the applicant in this review application does not meet cl.186.233 of Schedule 2 to the Regulations.

17. Therefore, cl.186.233 is not met.

    Ministerial Intervention

18. The MA requested the Tribunal refer the matter to the Minister for Intervention. The MA for the applicant did not make a written submission to the Tribunal concerning the Request for Ministerial Intervention.

19. The MA advised the Tribunal the applicant applied for a 186 visa in April 2018 and it had taken two years to get to the Tribunal for review. She advised the applicant had contributed to the Australian economy when she was working. The MA referred to a possible bar under s.48 of the Act. The MA referred to possible future complications of leaving and returning to Australia if the applicant should be granted a Bridging Visa E. The MA advised the Tribunal the applicant was fearful of travelling in the current circumstances and sought a referral under s.351 of the Act.

20. The applicant has continued to reside in Australia since the closure of her employing college in May 2019.

    Referral to the Minister by the Tribunal

21. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his or her public interest powers,[1] and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.

    [1] Mohammed v MIBP [2017] FCCA 2356 at [29].

22. The power under s351(1) may only be exercised by the Minister personally.[2] Further, the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person (including the Tribunal), or in any other circumstances.

    [2] S351(3)

23. A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Intervention guidelines (see under at paragraph 29). The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

    President’s Direction

24. Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.

25. The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

26. The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the member’s statement of decision and reasons and may also be set out in the referral letter to the Department.

27. If an applicant requests a member to refer a case to the Department and the member decides not to do so, the member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.

28. The Minister’s guidelines describe the types of cases that might be referred for the Minister’s consideration. The Minister has described the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration. The Minister’s guidelines indicate that certain cases that do not meet the guidelines for referral are inappropriate to consider.

29. The Tribunal has reviewed the list and types of exceptional circumstances that are set out in the Ministerial guidelines. The applicant has not made the Tribunal aware of any circumstances that might be characterised as follows:

    ·Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

    ·Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.

    ·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case.

    ·You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control

    Decision re ministerial Intervention

30. It appears to the Tribunal from the limited oral submissions and material contained in the Departmental and Tribunal files that the applicant became unemployed due to the closure of Murray College of Health Pty Ltd in May 2019. The MA did not make the Tribunal aware of the applicant’s current employment or living arrangements. The MA for the applicant did not make available to the Tribunal any written material or provide any documentation that might address exceptional circumstances as outlined above. The MA for the applicant has not made the Tribunal of any circumstances that fit within the criterial outlined above in paragraph 29.

31. Under these circumstances the Tribunal refuses the Request for Referral to the Minister for Intervention.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant an Employer Nomination Scheme (sub class186) visas.

    Mark Bishop

    Member

    ATTACHMENT A

    186.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     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.