Carpanese (Migration)

[2021] AATA 2959

Carpanese (Migration) [2021] AATA 2959 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roberto Carpanese

CASE NUMBER:  1825258

HOME AFFAIRS REFERENCE(S):          BCC2017/4270125

MEMBER:Terrence Baxter

DATE:11 August 2021

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 11 August 2021 at 8:58am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223(2)

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 14 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 Temporary Residence Transition stream, to work in the nominated position of Agricultural Technician for Shambhala Living Pty Ltd (the nominator).

5. The delegate refused to grant the visa on 22 August 2018 because the applicant did not meet cl 187.223(2) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 12 July 2018 and that accordingly the applicant did not satisfy cl 187.223(2) and did not meet cl 187.223 as a whole as required.

6. The applicant appeared before the Tribunal by videoconference on 20 April 2021 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application of the nominator.

7. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.

8. The applicant was represented in relation to the review by his registered migration agent. Mr Michael Bull of Immigration Consultants Group (Australia) represented the applicant from the lodgement of the nomination application until 14 April 2021. Ms Sonja Reusche, also of Immigration Consultants Group (Australia), represented the applicant from 14 April 2021. Ms Reusche attended the Tribunal hearing by videoconference.

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 187.223 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.

12. 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 reg 1.13A and reg 1.13B) of the Regulations; or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in reg 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.

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 Agricultural Technician approved, with the applicant as nominee, on 14 November 2017. The nomination application was refused on 12 July 2018 and the nominator sought review of that decision with the Tribunal on 18 July 2018.

14. On 22 July 2021, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

15. On 26 July 2021, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment on or respond to information which the Tribunal considered would, subject to his 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 22 July 2021, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Shambhala Living Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.187.223(1).

    If we rely on this information in making our decision, we may find that you do not meet cl.187.223(2), 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 9 August 2021.

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 22 August 2018 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 26 July 2021 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 20 April 2021 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 26 July 2021 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 he 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 Agricultural Technician has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.223(2) is not met.

21. Therefore, cl 187.223 is not met.

22. 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

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

    Terrence Baxter
    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.