CALCAGNO (Migration)

[2018] AATA 4234

CALCAGNO (Migration) [2018] AATA 4234 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mauro Ezequiel CALCAGNO

CASE NUMBER:  1617532

HOME AFFAIRS REFERENCE(S):           BCC2015/2553802

MEMBER:Denise Connolly

DATE:13 September 2018

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 13 September 2018 at 1:57pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – approval of nomination – nomination refused – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 65
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 Immigration and Border Protection 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 2 September 2015. 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 the Direct Entry stream, to work in the nominated position of Cafe or Restaurant Manager for the nominator Mediterraneus Pty Ltd.  

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application lodged by Mediterraneus Pty Ltd, referred to in the visa application, was refused.

6. The applicant appeared before the Tribunal on 3 August 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

9. 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 r.1.13A and r.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.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nominator Mediterraneus Pty Ltd lodged an application for approval of a nomination. The nomination application was refused on 29 August 2018. The delegate concluded the applicant does not meet cl.187.233(3) which requires that the Minister has approved the relevant nomination.

11. Mediterraneus Pty Ltd sought review of the decision to not approve the nomination and the Tribunal invited Mediterraneus Pty Ltd to a hearing on 3 August 2018 however the applicant did not attend. This hearing was combined with the hearing for the visa applicant.  Mediterraneus Pty Ltd did not seek a postponement of hearing or make contact with the Tribunal. The Tribunal dismissed Mediterraneus Pty Ltd’s review application on 3 August 2018 however Mediterraneus Pty Ltd was given an opportunity to apply, in writing by 17 August 2018, for reinstatement of the application. Mediterraneus Pty Ltd did not seek reinstatement.

12. On 20 August 2018 the Tribunal confirmed the decision to dismiss the application for review made by Mediterraneus Pty Ltd. The effect of this is that the decision to refuse to approve the nomination is affirmed.

13. On 21 August 2018 the Tribunal wrote to the applicant under s.359A inviting his comments on, or response to, the information that on 20 August 2018 the Tribunal dismissed the application for review made by Mediterraneus Pty Ltd. The Tribunal explained that this information is relevant because if relied on the Tribunal would find that the applicant does not meet cl.187.233(3) and it would affirm the Department’s decision. The applicant did not respond.

14. On the basis of the evidence before it, the Tribunal finds the nomination made by Mediterraneus Pty Ltd, the nomination referred to in cl.187.233(1), has been refused. Therefore the nomination has not been approved and cl.187.233(3) is not met.

15. 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

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

    Denise Connolly
    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.