Delgado Bautista (Migration)

[2021] AATA 1969

Delgado Bautista (Migration) [2021] AATA 1969 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Johan Farid Delgado Bautista
Ms Thi Lanh Dam

CASE NUMBER:  1919441

HOME AFFAIRS REFERENCE(S):          BCC2017/2639730

MEMBER:Nicola Findson

DATE:12 May 2021

PLACE OF DECISION:  Perth

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

Statement made on 12 May 2021 at 5:24pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager (General) – no approved nomination – nomination review application withdrawn – sponsor ceased operations – COVID-19 pandemic – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 65, 359
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.233, 187.311

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 25 July 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, because there was no approved nomination.

6. The applicant applied to the Tribunal for review of the Department’s decision on 20 June 2018, and with the application provided a copy of the delegate’s decision record

7. The applicants appeared before the Tribunal on 18 March 2021 to give evidence and present arguments by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The Tribunal exercised its discretion to hold the hearing by telephone as it was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone.  The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments

8. The applicants were represented in relation to the review by their registered migration agent. However, the migration agent did not attend the hearing.

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 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 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; and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. On 17 February 2021, the Tribunal wrote to the applicants, via their authorised representative, pursuant to s.359A of the Act.  This letter followed a decision in a matter (1914176) which related to the nomination of the relevant position by the applicant’s employer, LDJD Pty Ltd.  The letter invited the applicants to comment or respond to information that the application for approval of the nominated position made by LDJD Pty Ltd was refused by a delegate of the Minister, and although LDJD Pty Ltd had sought a review of the refusal decision, the company had subsequently withdrawn its review application. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. By way of response, on 24 February 2021, the applicant wrote to the Tribunal and claimed that he had started in the nominated position in 2013 and had worked hard for his nominating employer.  He indicated that he had anticipated his visa application would succeed and that he would be able to remain in Australia.  He indicated, however, that the Director of LDJD Pty Ltd got involved in other businesses that the company could not leverage, and as a result the company was forced in to administration.  He indicated that he was currently working in the same role for a different company (MP & TP Enterprises Pty Ltd), and that he had been told his employer did not want to lose him.  He indicated that he was afraid of leaving Australia in the midst of the Covid-19 pandemic and that he would like the opportunity to apply for another visa to lawfully remain in Australia.  

14. At the hearing, the Tribunal explained to the applicants the requirements of cl.187.233.  In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision. The Tribunal also explained that cl.187.311 requires secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 187 visa on the basis of satisfying the primary criteria for the grant of the visa. The applicants indicated that they understood the requirements for the visa.

15. The applicant indicated to the Tribunal that the circumstances in which LDJD Pty Ltd had ceased to operate was beyond his control.  He reiterated his claims to the Tribunal that he had worked hard for a long time for his sponsoring employer, with an expectation that a permanent visa would ultimately be granted.  He indicated that he and the second-named applicant had lived in Australia for many years; that they wished to remain in Australia and continue to be valuable members of their community; and that his current employer is willing to sponsor him.

16. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

17. On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 25 July 2017, the applicant was the subject of a nomination application by LDJD Pty Ltd for the position of Retail Manager (General).  The Tribunal further finds that the nomination application lodged by LDJD Pty Ltd was refused by the Department on 16 May 2019, and although LDJD Pty Ltd sought review of the refused nomination, the review application was subsequently withdrawn.

18. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.187.233(3) is not met.  It follows that cl.187.233 is not met.

19. 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.

20. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second-named applicant does not satisfy the secondary criteria for the visa.  Consequently, the second-named applicant does not satisfy cl.187.311 and the decision under review must be affirmed in respect of her.

21. The Tribunal acknowledges the difficult situation faced by the applicants, as the refusal of the visas means that it appears the applicants will be subject to a bar imposed by s.48 of the Act, which prevent them from making another application in Australia for an employer-sponsored temporary or permanent visa.  The Tribunal also acknowledges that the situation of the applicants is further complicated by the Covid-19 pandemic which has restricted international travel, and thus, their ability to apply for another visa from outside Australia.  However, as discussed with the applicants at the hearing, the Tribunal does not have any discretion to waive the requirements of cl.187.233 or cl.187.311, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.

    DECISION

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

    Nicola Findson
    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.