Durand-Allize (Migration)

[2018] AATA 1602

Durand-Allize (Migration) [2018] AATA 1602 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lina-Alizee Durand-Allize

CASE NUMBER:  1724875

DIBP REFERENCE(S):  BCC2017/2340544

MEMBER:R. Skaros

DATE:9 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 April 2018 at 12:05pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233(3)

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 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 30 June 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 Food Technologist. 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 visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination of the position in relation to the applicant was not approved.

6. The applicant was represented in relation to the review by her registered migration agent. A copy of the delegate’s decision record was provided to the Tribunal.  

7. On 5 March 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to her nominator’s decision to withdraw its review of the Department’s decision to refuse the nomination in relation to her. The Tribunal explained that the information was relevant to the requirement in cl.187.223(3) which requires that the relevant nomination is approved.

8. The invitation was sent to the authorised representative at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 19 March 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. After considering the circumstances and the issue on which this case turned, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the requirements in cl.187.233 are met.

    Nomination of a position

13. 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). In addition, this criterion also requires that the nomination has been approved: cl. 187.233(3).

14. The applicant was identified in a nomination for a position made by Fair Business. It was on the basis of this associated nomination that the applicant lodged her visa application. 

15. For the applicant to succeed in this review, the associated nomination has to be approved. Another nomination by different employer or even the same employer would not satisfy the requirement cl.187.233(3). As review of the decision in respect of the associated nomination has been withdrawn, this application for review has no prospect of the success. In the circumstances, the Tribunal decided to proceed to a decision on the information before it.

16. As the relevant 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.

17. 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

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

    R. Skaros
    Member