Brito Rosas (Migration)

[2024] AATA 561

Brito Rosas (Migration) [2024] AATA 561 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Cheysa Ishtar Brito Rosas
Mr Freckd Alexander Carvajal Sulbaran

REPRESENTATIVE:  Mr Antony Amhurst Wallace (MARN: 0965140)

CASE NUMBER:  2004953

HOME AFFAIRS REFERENCE(S):          BCC2019/3785598

MEMBER:Mary Sheargold

DATE:18 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2024 at 12:31pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Massage Therapist – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

CASES
Singh v MIBP [2017] FCAFC 105

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 on 20 February 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 31 July 2019. 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 (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Massage Therapist, ANZSCO 411611.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination application made by Mien Salon Spa Pty Ltd for the position of Massage Therapist was not approved.

6. The applicants appeared before the Tribunal by telephone on 15 March 2024 to give evidence and present arguments.

7. The applicants were represented in relation to the review.  However, the representative did not attend the Tribunal hearing.

8. On 14 February 2024, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Massage Therapist made by Mien Salon Spa Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that the nominator had applied to the Tribunal for review of that decision but the Tribunal had recently affirmed the delegate’s decision.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

9. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 28 February 2024, 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 to appear before the Tribunal to give evidence and prepare arguments.

10. On 27 February 2024, the applicants’ representative wrote to the Tribunal and stated that the applicants “would like the opportunity to present their case and comments at the hearing and they have sent confirmation of their attendance.” The Tribunal notes a separate invitation to the telephone hearing on 15 March 2024 had already been sent and, as the representative noted, a completed response form to the hearing invitation was received by the Tribunal ahead of this comment.

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 there is an approved nomination.

    Nomination of a position

13. 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 that was required to be made as part of the current visa application.

14. In addition, this criterion also requires that:

    ·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.

15. At the hearing, Ms Brito Rosas explained that she believed her application was refused because her sponsor, Mien Salon Spa Pty Ltd, had been barred from sponsoring any further workers and as such, its application to nominate her was refused.  She stated that this was beyond her control and that she had lived and worked in Australia honestly and following all laws for over 10 years.  She even remained in employment with Mien Salon Spa Pty Ltd for over 12 months after the nomination refusal before leaving to start her own business.

16. Ms Brito Rosas also expressed concerns regarding her personal safety if she was required to return to Venezuela given the current political climate and noted that her family members had all left Venezuela to live in the United States as holders of humanitarian asylum visas.

17. While the Tribunal is sympathetic towards the applicants’ situation and is cognisant that the issues leading to the nomination refusal were beyond Ms Brito Rosas’s control, the Tribunal’s consideration is limited to whether Ms Brito Rosas can demonstrate that she has an approved nomination from her sponsor, Mien Salon Spa Pty Ltd, in order to meet the requirement in cl 186.223(2) of Schedule 2 to the Regulations.

18. The nominator’s nomination application was refused by the Department, and the Tribunal recently affirmed that decision. The review applicants have acknowledged that they were aware of this. As the nomination application for the position to which the applicant’s Subclass 186 visa relates has not been approved, it follows that the applicant does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.

19. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105 in relation to the mirroring provision in cl 187.233 where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1).  It is to that act that the via applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind.  The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

20. In this matter, the Tribunal notes that because there is no approved nomination for the first named applicant’s visa application, she cannot overcome her current inability to meet cl.186.223(2) in relation to her application.  The nomination by Mien Salon Spa Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

21. Therefore, cl 186.223 is not met.

22. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

23. Pursuant to cl.186.311, the Tribunal must also affirm the decisions to refuse to grant Subclass 186 visas to the secondary applicant as he is not the member of a family unit of a person who holds a Subclass 186 visa, and there is no evidence that he meets the primary criteria in his own right.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Mary Sheargold
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(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.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.