COOPER (Migration)

[2018] AATA 5621

COOPER (Migration) [2018] AATA 5621 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robert Arran COOPER

CASE NUMBER:  1808798

HOME AFFAIRS REFERENCE(S):           BCC2016/2724811

MEMBER:Penelope Hunter

DATE:8 October 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 08 October 2018 at 3:30pm

CATCHWORDS
MIGRATION –  Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – nomination refused – application for review of nomination refusal decision withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.223, 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 17 August 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 Temporary Residence Transition stream, to work in a nominated position.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223(3) of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies cl.187.223(3).

   Nomination of a position

8. Clause 187.223 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.

9. 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.

10. The applicant applied for the visa on the basis of being nominated by his employer Emirates Hotels (Australia) Pty Ltd, who had also lodged an application for review before the Tribunal of the Department’s decision to refuse the nomination.

11. The Tribunal received advice dated 15 August 2018, from Emirates Hotels (Australia) Pty Ltd, seeking withdraw the application for review before the Tribunal. On 31 August 2018, the Tribunal accepted that withdrawal. On 21 September 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act providing this information. The applicant was advised that the information was important as cl. 186.233 requires that the nomination be approved.  The applicant was requested to respond to this information by 5 October 2018. The applicant was also advised that if they could not comment by 5 October 2018, they may ask for an extension of time which must be received before 5 October 2018.

12. As at the date of this decision, the Tribunal had not received any response to the 21 September 2018 invitation. The Tribunal therefore did not receive any response to its letter of 21 September 2018 within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicant failed to provide written comments or a response within the prescribed time, s.359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant's comments or response.

13. Further, as s.359C(2) of the Act applies to the applicant, he loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: s.360(3) of the Act.

14. The Tribunal finds, on the basis of the Departmental decision submitted by the applicant, that the nomination application by Emirates Hotels (Australia) Pty Ltd was refused by the Department on 7 February 2018. Additionally, the application for review of that decision by Emirates Hotels (Australia) Pty Ltd, was accepted as withdrawn by the Tribunal on 30 August 2018.  This was the nomination that was the subject of the declaration when the visa application was lodged by the applicant. This means that there is no nomination before the Tribunal which has been approved. Therefore, cl. 186.233(3) is not met.

15. Accordingly, cl.187.233 is not met.

16. 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

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

    Penelope Hunter
    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.