Dunn (Migration)

[2017] AATA 2264

Dunn (Migration) [2017] AATA 2264 (19 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lindsey Jean Dunn

CASE NUMBER:  1713593

DIBP REFERENCE(S):  BCC2017/799996

MEMBER:Karen Synon

DATE:19 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2017 at 11:18am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nomination withdrawn by employer – No current approved nomination

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233, r.5.19(4)(h)(i), r.5.19(2)

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 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 to the Department of Immigration for the visa on 28 February 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 (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Marketing Specialist’.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by ‘Insite Commercial Interiors Pty Ltd’ was withdrawn on 5 May 2017.

6. The applicant applied for review of the primary decision on 26 June 2017 and provided a copy of the department’s decision to the Tribunal.

7. The applicant was represented in relation to the review by her registered migration agent. He did not attend the hearing.

8. The applicant appeared before the Tribunal on 16 October 2017 to give evidence and present arguments.  The hearing was conducted by telephone with the applicant in Western Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is cl.187.233.

    Nomination of a position

11. 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)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination 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.

12. 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.

13. The Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to her.  As recorded in the primary decision, a copy of which she provided to the Tribunal, this position nomination was withdrawn and therefore is no longer available to her.  The applicant said she understood this.

14. Invited to make any comments or oral submissions the applicant said she was ill-advised regarding the appeal and thought she could find out the reason why her nomination was withdrawn.  She said it was nothing she did and did not relate in any way to her performance but was personality based.  The company’s decision (to withdraw her nomination) broke her heart and has impacted her life and her desire to move forward.  She still has not been given any reason why the company withdrew its nomination.  She did not do anything wrong or illegal but was working in a toxic environment where she was threatened and bullied and did not think it was legal in Australia to be treated this way.  She does not want to work for this company now but understood that by appealing the decision she would be given additional time to find a new sponsor.  She now knows this is not the case.  She understands that irrespective of what she says the application will be refused even though she has been offered positions by other employers.  She was given a glowing reference by one of the company’s directors.  She has nothing left in South Africa and really wants to stay in Australia.

15. The Tribunal advised the applicant that the department had placed a Certificate under s.376 of the Migration Act over certain documents on the department file.  However the Tribunal does not consider this Certification to be valid as it fails to identify why disclosing it would be contrary to the public interest and further there is no indication that any information given to the department was given in confidence.  In any case, after reviewing the information purportedly subject to the Certificate, the Tribunal does not consider it to be relevant to the review.  The Tribunal asked the applicant if she would like to respond or comment on this.  She did not.

16. Based on the information before it in the primary decision and confirmed by the applicant’s oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

17. Therefore, cl.187.233 is not met.

18. 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

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

    Karen Synon
    Member