Dible (Migration)

[2019] AATA 1850

Dible (Migration) [2019] AATA 1850 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Peter Henry Dible

CASE NUMBER:  1705303

HOME AFFAIRS REFERENCE(S):           BCC2016/188994

MEMBER:Antonio Dronjic

DATE:11 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 June 2019 at 2:36pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – s 359A invitation – no minimum requirement for ‘response’ – Direct Entry stream – Sales and Marketing Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 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 Immigration and Border Protection 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 13 January 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 Direct Entry stream, to work in the nominated position of Sales and Marketing Manager (ANZSCO 131112).

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 position to which the application relates had not been approved at the time of the delegate's decision - cl.187.233(3).

6. The applicant applied for the review of the Departments’ decision on 20 March 2017 and with the review application submitted a copy of the primary decision record. The applicant was represented in relation to the review by his registered migration agent.

7. By letter dated 4 June 2019, and in accordance with section 359A of the Act, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review.

   The particulars of the information are:

   Your visa application was refused by the Department on 15 March 2017 because the appointment, to which the visa application relates, has not been approved by the Department.

   The decision not to approve nomination by Clover3 West Pty Ltd was made by the Department on 1 February 2017. Clover3 West Pty Ltd applied for review of this decision at this Tribunal on 8 February 2017. On 28 May 2019, the Tribunal affirmed the primary decision related to the nomination application.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 187 visa. This is because one of the criteria contained within subclass 187, namely clause 187.233(3) requires that the Minister has approved the nomination.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that you do not meet the criteria contained within clause 187.233…

8. The invitation was sent to the applicant’s nominated address provided in connection with the review and advised that, if the comments on or response to information was not provided in writing by 18 June 2019, or if the request for extension of time to provide comments on or response to the information is not received by the Tribunal on or before 18 June 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. On 10 June 2019, the applicant’s representative responded to the Tribunal’s letter of 4 June 2019 submitting that the applicant, Mr Dible, advised the representative that he has no comment to submit. The representative, on behalf of his client requested the Tribunal to proceed with the decision stating his understanding that the Tribunal would affirm the decision made by Department.

10. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a ‘response’ to a s.359A invitation and that any reply directed to the information itself will constitute a response. However, the applicant has provided written consent under s.360 (2)(b)  of the Act for the Tribunal to decide the review without the applicant appearing before it.

11. 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

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.

13. 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.

14. Based on the evidence before it, the Tribunal finds that the nomination mentioned in subclause 187.233 lodged by Clover3 West Pty Ltd on behalf of the applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 187.233 at the time of its decision.

15. 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

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

    Antonio Dronjic
    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.