Daramola (Migration)

[2019] AATA 4496

Daramola (Migration) [2019] AATA 4496 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Folukemi Omolola Elizabeth Daramola
Mr Olarewaju Akinola Daramola
Mr Ebunoluwa Akinola Daramola
Miss Iyinoluwa Oluwapelumi Daramola
Miss Toluwanimi Afeyifoluwake Daramola
Miss Mojisolaoluwa Monioluwa Daramola

CASE NUMBER:  1717693

HOME AFFAIRS REFERENCE(S):           BCC2016/3250022

MEMBER:Peter Emmerton

DATE:9 October 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 09 October 2019 at 3:18pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination not approved – withdrawal of application – extension granted – allegations of harassment and unpaid super – withdrawal motivated by rejected advances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cl 187.223, r 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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 September 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Medical Practice Manager, ANZSCO 512211.

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 had not been approved.

6. The applicant appeared before the Tribunal on 9 October 2019 via video conference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Olarewaju Akinola Daramola, via telephone from Lagos, Nigeria.

7. The applicant was represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been approved.

10. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

11. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

12. On 30 September 2016, the applicant’s sponsoring employer, Glenmoy Medical Centre Pty Ltd applied for approval for a nomination for the position of Medical Practice Manager, ANZSCO 512211. Mrs Folukemi Omolola Elizabeth Daramola was the nominee for the position.

13. On 12 May 2017 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(ii)(D) nor therefore r.5.19(4)(h)(i) of the Regulations. In a separate decision, the Department refused Mrs Daramola’s subclass 187 visa application because Glenmoy Medical Centre Pty Ltd’s nomination was not approved.

14. Glenmoy Medical Centre Pty Ltd and Mrs Daramola applied to the Tribunal to review the Department’s decisions.

15. On 11 August 2019, the Tribunal, upon the receipt of a request for the withdrawal of their application for review from Glenmoy Medical Centre Pty Ltd for the position of Health Practice Manager, (ANZSCO 512211), accepted the withdrawal application.[1] Accordingly the Tribunal no longer has jurisdiction to review the delegate’s decision. Subsequently the delegate’s decision refusing the nomination stands.

    [1] AAT Migration and Refugee Division Case No. 1711615

16. On 15 August 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised her that the Tribunal had accepted the withdrawal of the application for review made by Glenmoy Pty Ltd and subsequently the Tribunal no longer has jurisdiction to review the decision.

17. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, she cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

18. The applicant was advised that if she cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing her the visa.

19. The applicant was invited to provide a written response by 12 June 2019. The letter advised the applicant that if she did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

20. On 23 August 2019 the Tribunal received a request for an extension of time to provide the comments or response.

21. The Tribunal considered the request carefully and agreed to grant an extension of time until close of business, 12 September 2019.

22. On 16 September an invitation was issued to the applicant for a hearing scheduled for 9 October 2019.

23. On 19 October the Tribunal received a request to postpone the hearing until after 8 November 2019 for the following 3 reasons.

    ·The representative was attending an Exposition in Birmingham of which they were a sponsor.

    ·Mrs Daramola’s husband had applied for a visa to attend the hearing.

    ·Mrs Daramola has been approached by Mssrs Jacobson & Associates (Lawyers) regarding a “conciliation conference” with the Australian Human Rights Commission (AHRC) around 7^th/8^th November 2019

24. The Tribunal declined the request because of the following reasons.

    ·The representative’s firm was invited to send another representative, which they did. Whilst the Tribunal acknowledges the potential inconvenience, it can-not reschedule its hearings to accommodate the business decisions of representatives.

    ·Mrs Daramola’s husband had applied for a visitor visa previously and been denied. In the view of the Tribunal it was more practical to accommodate Mr Daramola giving evidence by telephone than risk ongoing delays awaiting an uncertain visa decision. At the time of the hearing a response from the department had not been received.

    ·Regardless of the outcome of an invitation for a “conciliation conference” with the Australian Human Rights Commission (AHRC) around 7^th/8^th November 2019, it will not alter the fact that the nominating entity has withdrawn their nomination as of 11 August 2019.

25. The hearing took place on the scheduled date of 9 October 2019.

    Nomination of a position

26. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

27. In addition, this criterion also requires that:

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

    ·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.

28. The Tribunal was presented with a substantial amount of evidence, in writing prior to the hearing and verbally at the hearing, detailing the allegations of sexual harassment by the applicant’s previous employer, the Director of the nominating entity, Glenmoy Medical Practice. The alleged incidents were varied, occurred over a substantial time period in a range of locations within the workplace and external to it.

29. The Tribunal notes that these allegations were not shared with the police at the time of the alleged incidents but were reported in April 2019 by Mrs Daramola and she has been subsequently interviewed in July 2019. The Tribunal accepts the explanation proffered by Mrs Daramola that she chose not to go to the police, believing that it would put her immigration status at risk, if her employer subsequently chose to withdraw his nomination for the position.

30. The Tribunal accepts that Glenmoy Medical Centre Pty Ltd terminated Mrs Daramola’s employment on 25 September 2018. The applicant claims this is because she resisted the Directors’ alleged advances and was a potential threat to what the applicant stated were his inappropriate business practices which included the underpayment of Superannuation entitlements to staff. She also expressed a view that the withdrawal of nomination was an evil, motivated by revenge because she rejected his advances.

31. It is accepted that Mrs Daramola’s husband is supporting the family from Nigeria, where he is currently employed by Shell Petroleum. He has worked for them in various locations for 27 years. The Tribunal notes that he had originally moved to Australia with his family in 2013 with his current employer but was required to return to Nigeria because of a change in corporate policy regarding off-shoring employees. Mr Daramola stated that he had been unable to secure employment in Australia because organisations were reluctant to employ someone without the relevant visa work rights. He went on to say that colleagues stated to him that if he had the appropriate visa status, his highly regarded reputation would facilitate him gaining employment in Australia.

32. Evidence had been provided prior to the hearing supporting the assertion that Mrs Daramola had sought remedial actions with the Australian Human Rights Commission (AHRC). The Tribunal was provided with details of the current status of that action at the hearing and the expected conference in November. The Tribunal also accepts the statement that she has contacted APRA in regard to her previous employer.

33. A considerable number of very positive and supportive personal references regarding both Mrs Daramola and her family were received prior to the hearing. The referees included friends, community members, education officials associated with her children and their Church leaders. Evidence was also provided demonstrating current study being undertaken Mrs Daramola and her children. All the documentation given to the Tribunal suggests a family working hard to be productive and positive contributing members of their communities.

34. The Tribunal was not made aware of any circumstance that would cause it to doubt the voracity of Mrs Darmola’s claims. Regardless of how distasteful the Tribunal finds these disturbing allegations and the evidence provided to support them, it is not the role of the Tribunal to judge whether or not the claimed actions took place.

35. The Tribunal sought to confirm with the visa applicant that a valid nomination associated with this application was not in existence. Mrs Daramola affirmed that was the situation.

36. Mrs Daramola requested that the Tribunal refer this case to the Minister for his attention, under Section 351 of the Migration Act 1958. The Tribunal has decided that it will not take that course of action. It has formed a view that an essential criterion cannot be fulfilled as there is not a valid nomination. The legislation and regulations surrounding this issue are unambiguous; a visa cannot be issued unless there is an approved nominated position. It is clear that is not the situation in this case.

37. The Tribunal also notes there may be alternate visa routes potentially open to the applicants should they wish to pursue them. It is aware that the family has economic resources available to them to facilitate such action should they so choose. Both Mrs Daramola and Mr Daramola are highly educated and Mr Daramola is in a substantial, long-term senior role within a global corporation.  

38. The Tribunal notes that the applicant may make a request directly to the Minister and this was conveyed to the applicant and her representative at the hearing.

39. It has been observed by the Tribunal that a change of representatives has occurred previously as a result of questionable capacity and performance. The current representative stated that the first representative was no longer accredited by MARA. The Tribunal has not been made aware of anything that might indicate that the current firm representing the applicant is incapable of adequately assisting in a competent manner.

40. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

41. Therefore, cl.187.233 is not met.

42. 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

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

    Peter Emmerton
    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.