CANTOS (Migration)

[2019] AATA 2838

CANTOS (Migration) [2019] AATA 2838 (22 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gabriel CANTOS

CASE NUMBER:  1815613

HOME AFFAIRS REFERENCE(S):           BCC2016/1724904

MEMBER:Alan McMurran

DATE:22 February 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 22 February 2019 at 2:44pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Scaffolder – not the subject of nomination – no review sought by nominator – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65,
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223 (2), rr 1.13A, 1.13B, 5.19

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 on 10 May 2018, 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 13 May 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 (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 Temporary Residence Transition stream, to work in the nominated position of Scaffolder.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223 (2) because the applicant was not the subject of a nomination which the Minister has approved.

6. The Tribunal had sent the applicant an invitation to appear and provide information on 24 January 2019. The agent representing the applicant emailed the Tribunal in this matter on 29 January 2019 advising that the agent was absent on long service leave until 20 June 2019, and the applicant on leave from 16 February until 19^th March 2019.

7. The Tribunal considered the response and sent a reply to the representative on 22 February to advise that the postponement was declined and the Tribunal would proceed to a decision.

8. The applicant did not appear before the Tribunal on 22 February 2019 when the matter was listed for hearing to give evidence and present arguments. The invitation from the Tribunal for an appearance includes a paragraph which states:

   “If you do not participate in the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”

9. The Tribunal has elected therefore to proceed to make a decision on the review on the information presently available and in the absence of the applicant or the representative. The Tribunal notes that neither the applicant nor the representative attempted to provide any additional information for consideration and that the time for doing so had already passed without response.

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 on the information available to us, the applicant is the subject of a nomination to which the application relates and which has been approved by the Minister as required under sub-regulation 187.223(2).

    Nomination of a position

12. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

13. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19)

    ·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.

14. For the purpose of this review, the Tribunal has had access to the Tribunal’s file and the Department’s electronic file[1].

    [1] BCC2016 1724904

15. A check of the Department’s file shows that an application by Mc Elligotts (Qld.) Pty Ltd nominating the applicant for the position of scaffolder was refused by the Department on 6 April 2018. No review was sought by the nominator of that refusal.

16. The Tribunal has noted that other than for the application lodged with the Tribunal on 29 May 2018, it has received no further or other information from or on behalf of the applicant for consideration.

17. The Tribunal has before it no additional information or other information than was before the Department, when the primary decision was made by the Department on 10 May 2018, not to approve the related visa application.

18. The Tribunal wrote to the applicant on 31 May 2018 inviting the applicant to provide material or written arguments for consideration as soon as possible. There was no response to that letter.

19. On 11 December 2018, the Tribunal sent a natural justice letter to the applicant advising him that the position identified in the visa application was not approved, and that the decision to refuse the nomination was not the subject of an application for review.

20. The applicant was asked to respond with information as to an approved nomination or pending application for review by 27 December 2018. Again, the applicant did not respond until receipt of the agent’s email on 29 January 2019 requesting a postponement, which has been declined.

21. A check of the Department’s file shows that from the lodgement of this review application for the visa on 29 May 2018, there has been no further direct communication with the visa applicant or on his behalf, and nothing further heard from him either by the Department or the Tribunal.

22. As there has been no other communication from the applicant since the time he lodged his visa application, the Tribunal has no further or additional information upon which the Tribunal might rely, and the applicant has not taken up the opportunity to appear at hearing and provide any further information or make submissions to the Tribunal, notwithstanding the Tribunal’s invitation to do so.

    Findings

23. The Tribunal finds that the applicant has applied for a visa in the Temporary Residence Transition stream for a Subclass 187 regional sponsored migration scheme visa.

24. The applicant is required to meet the criteria in the regulation 187.22, which includes subregulation 187.223(2). This subregulation requires that the applicant is the subject of a nomination which the Minister has approved.

25. The Tribunal is satisfied according to the Department records that the nomination by the sponsor was refused on 6 April 2018.

26. There is no indication that the Department’s refusal of the nomination is the subject of any review and the Tribunal is satisfied that there is no outstanding application or review which has been sought for a nomination of the applicant which relates to this Subclass 187 visa application.

27. The Tribunal has considered the agent’s request of 29 January 2019. The Tribunal is satisfied that there is no evidence before it of any nomination outstanding on behalf of the applicant or any new information provided or evidence of employment which is the subject of a successful nomination, or a refusal of a nomination which is under review. No new information which might have been included by the agent was forthcoming or provided with the email on 29 January 2019, albeit it was late in any event, and there was simply nothing further to consider.

28. As a result, the Tribunal finds that the Minister has not approved the nomination in support of the applicant, and the applicant does not satisfy the subregulation 187.223 (2).

29. Therefore, cl.187.223 is not met.

30. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.