Buthpitilekamlage (Migration)

[2021] AATA 3586

Buthpitilekamlage (Migration) [2021] AATA 3586 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Dilukshi Ravihari Buthpitiya Buthpitilekamlage
Mr Irosh Udara Ranathunga Ranathunga Arachchige

CASE NUMBER:  1828689

HOME AFFAIRS REFERENCE(S):          BCC2016/4150116

MEMBER:Mark O'Loughlin

DATE:7 September 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 07 September 2021 at 4:03pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Customer Service Manager –no approved nomination – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, 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 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 8 December 2016. 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 a visa in the Direct Entry stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

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 of the position to which the application relates had not been approved as required by cl.187.233(3).

6. The applicant appeared before the Tribunal on & June 2021 to give evidence and present arguments in a hearing combined with the hearing of an application to review the decision to refuse the approval of the nomination of the position to which the application relates.  Mr. Forbes gave evidence on behalf of the nominator.

7. The applicants were represented in relation to the review by their registered migration agent.

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 the nomination of the position to which the application relates.

   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 nomination has been approved and has not been subsequently withdrawn.

12. This Tribunal made a decision on 4 August 2021 affirming the departmental decision to refuse the nomination.

13. The applicants were advised of the refusal and advised that it would be the reason or part of the reason to affirm the decision in this application.

14. On 4 August 2021 they were invited to comment on or respond to the information by 18 August 2021 or request an extension of time within which to so comment or respond by that date.

15. On 17 August 2021 the Tribunal received correspondence from the applicants’ registered migration agent noting that the nomination had been refused and that their visa application cannot therefore be approved.

16. The applicants sought an extension of their bridging visas under compassionate and humanitarian grounds for various reasons including the applicants’ contributions to the community and the risk of catching COVID 19 if they are obliged to return to Sri Lanka.

17. The Tribunal does not have the jurisdiction to extend the applicants’ bridging visas.

18. In the final paragraph of the correspondence the applicants ask that the Tribunal delay its decision “so that they could organise to travel to and from home country when it is safe for them to do so.”

19. The Tribunal is not prepared to leave the making of the decision in this matter open.

20. The nomination of the related position has not been approved as required by cl.187.233(3).

21. Therefore, cl 187.233 is not met.

22. 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.

23. Because the applicant does not satisfy the primary criteria for the grant of a visa, the secondary applicant does not satisfy cl.187.311 of schedule 2 of the Migration Regulations and does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Mark O'Loughlin
    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.