Constantino (Migration)

[2019] AATA 2465

Constantino (Migration) [2019] AATA 2465 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Joyce Anela Constantino

CASE NUMBER:  1829704

HOME AFFAIRS REFERENCE(S):           BCC2018/1769877

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 1:02pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – nomination refused – no application for review of decision lodged – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth) ss 65, 359AA
Migration Regulations 1994 (Cth), r 5.19, 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 22 April 2018. 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 Disabilities Services 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 23 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 26 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 the applicant that an application for review had been lodged for the related nomination, but that Ms Restar would not provide the applicant with the details of the application for review. It was submitted that 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 her 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 she identified in her visa application form as having transaction reference number EGOI1EML22 (the associated nomination). The delegate’s decision record indicates that on 23 August 2018 the associated nomination was refused by the Department.

14. On 24 August 2018, the Department sent the applicant a natural justice letter inviting her to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and consequently the delegate made a decision to refuse to grant the visa.

15. On review, the applicant was invited to provide information about the status of the 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 was lodged but the employer would not give them any evidence of this.

16. 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 she made the required declaration in her visa application, was refused by the Department on 23 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 her that if it relied on the information it would go on to find that she 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.

17. When asked if she wished to request additional time to respond, the applicant promptly responded stating that she was not informed about the refusal and found out only after she checked her visa status using the Department’s online visa verification facility (VEVO). She stated that she, and some of her colleagues, approached their nominating employer about the refusal and were advised to lodge an application to the Tribunal. The applicant stated that they were informed by Ms Restar that everything would be fine and it appears that she has done nothing for them. The applicant stated that she has nothing further to say about the nomination. She then stated that when she approached Ms Restar to request evidence of the nomination review, Ms Restar did not give it to her. The applicant then indicated that Ms Restar may be the subject of investigations by the Department.

18. The Tribunal has considered the applicant’s response, and while it acknowledges that the applicant may have been informed by her 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 the contrary. Furthermore, the applicant has not been able to provide any evidence which suggests that any such review had been made by her nominating employer. The Tribunal acknowledges the matters raised by the applicant about the conduct of her nominating employer, however, as explained to the applicant at the hearing, the Tribunal has no discretion in these matters and must make its decision in accordance with the relevant legislative provisions.

19. 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.

20. 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

21. 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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.