Dal Bo' Aliabeva (Migration)

[2023] AATA 3447

Dal Bo' Aliabeva (Migration) [2023] AATA 3447 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Bogdana Dal Bo' Aliabeva
Mr Roberto Di Bernardo

REPRESENTATIVE:  Mrs Kathryn W J Bateman (MARN: 0637567)

CASE NUMBER:  1931783

HOME AFFAIRS REFERENCE(S):          BCC2019/4193643

MEMBER:C. Packer

DATE:13 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 13 September 2023 at 2.13pm

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Office Manager – applicant did not provide any comments or response  – applicant does not have an approved nomination that concerns him – not the subject of an approved nomination – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363

Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 23 August 2019. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations.

5. On 27 August 2023 the applicants provided a hearing response.

6. On 28 August 2023 the Tribunal wrote to the review applicants pursuant to s.359A and s.359 of the Act, inviting the applicants to provide comments or response on information. The letter also invited the applicants to provide information. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response and information was not provided in writing by 11 September 2023 the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. However, the applicants did not provide any comments or response, and did not provide the information in writing, within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal therefore cancelled the hearing scheduled for 21 September 2023.

8. The Tribunal has decided to proceed to a decision without providing further time to provide comments, a response to information or information.

9. 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

10. 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant

12. On 28 August 2023 the Tribunal invited the applicants to provide comments on or respond to information that addressed the requirements of the visa. The letter stated in part:

    The particulars of the information are:

    · On 23 August 2019 AB7 PTY LTD (your nominator) made an application listed as Direct Entry under Regional Sponsored Migration Scheme (187 visa). The position was said to be Office Manager and nominated you. However, on 18 September 2019 the delegate of the Minister rejected the application.

    ·     On 3 October 2019 the nominator sought a review of the delegate’s nomination refusal decision (case number 1927865). 

    ·     However, on 9 June 2023 the Tribunal affirmed the decision not to approve the nomination.

    ·     This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.

    This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa.
    The secondary applicant would also not satisfy requirements.
    If we rely on this information in making our decision, the decision under review must be affirmed.

13. The applicants did not provide comments/respond to information in the Tribunal’s letter in the prescribed time.

14. In sum, the Tribunal finds that there is no approved nomination that concerns the applicants. Therefore, cl 187.233(3) is not met.

15. The applicants have 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    C. Packer
    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.