Caguintuan (Migration)

[2019] AATA 2695

Caguintuan (Migration) [2019] AATA 2695 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Don Rae Czar Caguintuan

CASE NUMBER:  1829342

HOME AFFAIRS REFERENCE(S):           BCC2017/2628891

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 9:08am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Residential Care Officer – nomination refused – no review of nomination refusal made by nominator – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), 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 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 24 July 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 11 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 25 February 2019, the Tribunal received correspondence from the applicant’s representative, relevantly submitting that the applicant had contacted Ms Cynthia Restar of the Frangipani Group Homes, who had assured him that an application for review had been lodged for the related nomination but she would not provide him details of the application. It was submitted the applicant is unable to make an informed comment regarding the nomination.

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

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

12. 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.

13. 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 EGOF7QBPFT (the associated nomination). The delegate’s decision record indicates that on 22 August 2018 the associated nomination was refused by the Department.

14. On review, the applicant was invited to provide information about the status of the associated nomination, to which the representative responded, indicating that the applicant, along with other nominees, had been informed by the nominating employer that a review of the nomination refusal had been made but the employer would not give them any evidence of this.

15. 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.

16. When asked if he wished to request additional time to respond, the applicant promptly responded stating that he had given Ms Restar all the required documents and she lodged the visa application on his behalf. He stated that Ms Restar included her own details in the application form. He stated that Ms Restar had given him a copy of the acknowledgement of the nomination but did not give him a copy of the refusal decision. The applicant stated that he and other colleagues found out that their visas had been refused after one of their colleagues checked the Department’s online system and informed them. He stated that when he received the decision regarding the refusal of his visa from the Department he contacted Ms Restar and she arranged a meeting, which he and other colleagues attended, where they were advised to lodge an application for review to the Tribunal. The applicant stated that on Ms Restar’s advice he decided to lodge a review of his visa refusal. He stated that Ms Restar had assured them that everything will be fine. He indicated that after receiving correspondence from the Tribunal about the nomination, he contacted Ms Restar to get some documents and she advised him to ask for an extension and told him that she would include his name on an application that was being submitted. The Tribunal noted that she may have been referring to another type of application as there is no record of a review of the refusal of the nomination in which he was identified as the nominee.

17. The Tribunal has had regard the applicant’s response, and while it acknowledges that the applicant may have been informed by his nominating employer that a review of the nomination refusal had been made, 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 lodged. Furthermore, the applicant has not provided any evidence which suggests that the nominator did apply for review of the decision to refuse the associated nomination.

18. 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.

19. 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

20. 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.