Caggiano (Migration)

[2022] AATA 1798

Caggiano (Migration) [2022] AATA 1798 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Melanie Caggiano

CASE NUMBER:  1909026

HOME AFFAIRS REFERENCE(S):          BCC2017/4377838

MEMBER:Terrence Baxter

DATE:7 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 07 June 2022 at 10:45am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – restaurant manager – subject of approved position nomination – refusal of related nomination application affirmed on review – nominator no longer operating business – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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 (Cth) (the Act).

2. The applicant applied for the visa on 21 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Restaurant Floor Manager for Pigs Palace Pty Ltd (the nominator).

5. The delegate refused to grant the visa on 4 April 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 21 February 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 12 April 2019.

7. The applicant appeared before the Tribunal by video conference on 27 April 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the nomination application of the nominator. The Tribunal also received oral evidence from Ms Claudine Coupe, the sole director of the nominator.

8. The applicant was initially represented in relation to the review by a legal practitioner. On 26 April 2022, the representative notified the Tribunal that he no longer represented the applicant in the matter. On the morning of the hearing, the applicant provided a notification to the Tribunal that she withdrew the previous authorisation of the representative in the matter. At the hearing, the applicant stated that she wished to proceed with the application without being represented.

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 there is an approved nomination.

    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.

12. 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 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.

13. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Restaurant Floor Manager approved, with the applicant as nominee, on 20 November 2017. The nomination application was refused on 21 February 2019 and the nominator sought review of that decision with the Tribunal on 11 March 2019.

14. On 16 May 2022, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

15. On 19 May 2022, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting her to comment on or respond to information which the Tribunal considered would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 16 May 2022, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Pigs Palace Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl 187.233(1).

    If we rely on this information in making our decision, we may find that you do not meet cl 187.233(3), which requires the nomination be approved, and affirm the decision under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 2 June 2022.

16. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has been received by the Tribunal.

17. Where an applicant is invited to comment on or respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(2) of the Act.

18. The Tribunal has considered whether it should take further action to obtain the applicant’s views on the information referred to in paragraph 15 above. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicant has been aware since 4 April 2019 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 19 May 2022 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 27 April 2022 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

19. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicant’s views on the information referred to in the invitation from the Tribunal of 19 May 2022 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that she meets the relevant criteria under cl 187.223 of Schedule 2 to the Regulations.

20. The Tribunal notes that the application for nomination for the position of Restaurant Floor Manager has not been approved. At the hearing, the Tribunal heard that the nominator had previously operated the Hog’s Breath Café restaurant in Cairns but that the relevant franchise agreement had ended on 13 March 2022. Ms Coupe advised the Tribunal that she had remained in possession of the leased premises after the end of the franchise with the intention of operating a new business from the premises under a different branding. However, she stated that she now accepted that the nominator would not be continuing to operate a restaurant business and that she was in the process of attempting to sell the business assets of the company.

21. The applicant stated that she was aware that her application could not be approved but that she wished to place on record her experience in the position of Restaurant Manager. She said that she had been employed by the nominator until mid-March 2022 and that she had subsequently obtained alternative employment.

22. Ms Coupe stated that she had been associated with Hog’s Breath Café restaurants for almost 30 years. She said that the applicant had been employed by her company since 2017 as a Restaurant Manager. She stated that the applicant had “done the hard yards” as Restaurant Manager during the COVID-19 pandemic and that she (Ms Coupe) did not expect to be in the position that her restaurant would be forced to close. She said that if the nomination application and the applicant’s visa application had been determined within six months of the delegate’s decision, the nominator would still have been in business and she was confident that the nomination application and related visa application would have been approved.

23. The nomination application was refused because the delegate found that the nominator had not demonstrated that the tasks to be performed by the nominee in the position corresponded to the tasks of an occupation specified by the Minister in the relevant instrument. Ms Coupe interpreted this decision as meaning that the delegate was not satisfied that the applicant had been fulfilling the role of Restaurant Manager. She vigorously asserted that the applicant had filled this role competently and said that she had persisted with the application to review the refusal of the nomination application, even after she was aware that the nomination application could not be approved, so that the reasoning of the delegate could be challenged. She said that she did not wish to see the applicant prejudiced by the closure of the nominator’s business. The nominator produced evidence of the applicant’s employment from 2017 to March 2022.

24. The nomination application was refused because the nominator conceded that it was no longer actively and lawfully operating a business in Australia. Although it was not necessary for the Tribunal to determine in the nomination matter whether the applicant would be performing the role of Restaurant Manager, the Tribunal has no reason to doubt, based on the evidence provided, that the applicant was fulfilling that role and would have fulfilled the role had the nomination application been approved.

25. The Tribunal accepts that the closure of the nominator’s business was in no way attributable to the performance by the applicant of her duties as Restaurant Manager. However, as there is no approved nomination for the purposes of this application, cl 187.233(3) is not met.

26. Therefore, cl 187.233 is not met.

27. 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

28. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Terrence Baxter
    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.