Buniel (Migration)

[2019] AATA 2470

Buniel (Migration) [2019] AATA 2470 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Emmanuel Ephraim Buniel

CASE NUMBER:  1830367

HOME AFFAIRS REFERENCE(S):           BCC2017/4964272

MEMBER:R. Skaros

DATE:17 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2019 at 9:43am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – nomination refused – no application for review of decision refusal lodged – not subject of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Kaur v MIBP [2017] FCCA 564

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 27 December 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 (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 indicated that the relevant nomination was refused by the Department on 22 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 26 February 2019 granting the extension of time and informing the applicant that his response should be received by 16 March 2019.

8.    A written response was received on 17 March 2019 requesting the Tribunal to consider the review in the absence of a nomination. It was indicated that the applicant is currently building his skills and experience in Australia and that the nominating employer would apply for a new nomination. The Tribunal also received copies of documents relating to the applicant’s qualifications, skills and employment, including a letter of support from the nominating employer.

9.    The Tribunal subsequently received correspondence from the applicant’s newly appointed representative relevantly submitting that the applicant had contacted Ms Synthia Restar of the Frangipani Group Homes, who had assured the applicant that an application for review had been lodged for the related nomination, but that Ms Restar would not provide the applicant with the details of the application for review. It was submitted that the applicant is unable to make an informed comment regarding the status of the nomination.

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

11.      The applicant was represented in relation to the review by her registered migration agent. The representative attended the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

   14.      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.

   15.      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 he identified in his visa application form as having transaction reference number EGOGUDUSBO (the associated nomination). The delegate’s decision record indicates that on 22 August 2018 the associated nomination was refused by the Department.

   16.      On review, the applicant was invited to provide information about the status of the nomination. In the initial response received, there was a request to consider the review without a nomination. When this information was discussed with the applicant at the hearing, he indicated that the written response, which indicated was from him, had been prepared by his employer on his behalf. It became apparent that the applicant was not fully aware, or may not have understood, the content of the letter that was submitted to the Tribunal. The applicant stated that his employer, Ms Cynthia Restar, had given him and his colleagues the impression that she would apply for review of the nomination refusal.    

   17.      The Tribunal formed the view that the applicant may have been led to believe that the nominating employer had lodged a review of the associated nomination. Accordingly, using the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which he made the required declaration in his visa application, was refused by the Department on 22 August 2018 and that there is no evidence, either on the Department’s records or the Tribunal’s records, which indicates that the associated nomination has been subsequently approved or that the nominating employer had applied for review of the decision to refuse the associated nomination. The Tribunal explained to the applicant the relevance of the information and informed him that if it relied on the information it would go on to find that he does not meet cl.187.233(3), and had no prospect of meeting that requirement, and that it in the circumstances the decision under review would be affirmed.

   18.      When asked if he wished to request additional time to respond, the applicant requested a few minutes, which the Tribunal granted, after which he stated that he had applied for the visa under the instructions of the nominating employer. He stated that he provided all the required documents to his employer. He stated that the employer had told him that she would apply for review of the nomination decision made by Immigration. He stated that his employer had initially responded to the Tribunal on his behalf and that he subsequently requested for correspondence to be sent directly to him. The applicant stated that he is shocked that his nominating employer had not applied for review of the nomination refusal and asked if there was an opportunity to find another sponsor. The Tribunal explained to the applicant that only the nomination that was made at the time of the visa application can be relied upon to meet the requirement in cl.187.233(3)[1]. The applicant gave evidence about his dealings with the nominating employer and stated the employer had given them, himself and his colleagues, a guarantee and it appears the employer had not done what she had promised.

   [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 applicant’s response, however, there is no provision in the legislation to take into account the matters raised by the applicant, including the representations made to him by the nominator about the review of the nomination decision having been lodged. The evidence before the Tribunal, including the Tribunal’s database records and the Department’s records, indicates that no review of the nomination refusal had been made by the nominator. Furthermore, the applicant has not provided any evidence which suggests that any such review was in fact made.

   20.      The issue before the Tribunal is whether the associated nomination has been approved. The evidence before the Tribunal is 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. That decision has not been overturned or set aside. 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.