Cabrera (Migration)

[2019] AATA 3118

Cabrera (Migration) [2019] AATA 3118 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Gresilita Liza Cabrera
Miss Ysabelle Lianne Cabrera
Mr Yale Luis Cabrera

CASE NUMBER:  1830523

HOME AFFAIRS REFERENCE(S):          BCC2017/4520169

MEMBER:R. Skaros

DATE:7 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 07 May 2019 at 8:06am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Residential Care Officer – nomination not approved – no review application by nominating employer – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
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 (the Act).

2. The applicants applied for the visas on 29 November 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 Residential Care 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 27 February 2019 granting the extension of time and informing the applicant that her response should be received by 16 March 2019. No response was received.  The applicants were accordingly invited to appear before the Tribunal at a hearing.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

11. 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.

12. 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 EGOGK5SL7O (the associated nomination). The delegate’s decision record indicates that on 22 August 2018 the associated nomination was refused by the Department.

13. On review, the applicant was requested to provide information about whether the associated nomination has been approved or whether an application for review of the nomination refusal had been made. The applicant did not provide a substantive response to that request.

14. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233(3) and asked her if she was aware of the status of the associated nomination. In response, the applicant stated that she was told by her nominating employer that they will respond with the requirements so that the sponsorship will be approved. She then stated that she is currently studying to be eligible for the nomination approval which her employer is working on. The Tribunal formed the view that the applicant may have been under the mistaken belief that her nominating employer had sought review of the nomination or that the nomination was still being considered. Accordingly, using the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which she made the required declaration in her 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 had been approved or that the nominating employer had applied for review of the nomination refusal. The Tribunal explained to the applicant the relevance of the information and informed her that if it relied on the information it would go on to find that she did not meet cl.187.233(3) and had no prospect of meeting that requirement and that the decision under review would be affirmed.

15. When asked if she wished to request additional time to respond or comment on the information, the applicant chose to promptly respond, stating that if the nomination has not been approved then she has no comment to make. When asked if she had anything further to say, the applicant stated that she would like time to study in Australia because she is currently studying Diploma in Childhood Education. She stated that she is trying to be eligible for the visa and will look for another sponsor.

16. The Tribunal explained to the applicant that the purpose of the review is to determine the issues in the review, which is whether the associated nomination in relation to her had been approved. It noted that there is no provision in the legislation to take into account her current circumstances and explained that the Tribunal did not have the power to permit her to remain in Australia for the purpose of study. The Tribunal also explained to the applicant that a new nomination from another sponsor would not assist her in this review as only the nomination in place at the time of the visa application can be relied on to meet the requirements in cl.187.233(3)[1]. The Tribunal noted that given the associated nomination had been refused and no review of that decision had been made, then the appropriate course of action for the Tribunal, is to proceed to a decision on the information before it.

    [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.

17. The issue before the Tribunal is whether the associated nomination has been approved. 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.

18. 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.

19. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. As the first named applicant has not met the requirements for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    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.