Ellison (Migration)

[2018] AATA 3754

Ellison (Migration) [2018] AATA 3754 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rebecca Ellison

CASE NUMBER:  1716143

DIBP REFERENCE(S):  BCC2016/4033116

MEMBER:Penelope Hunter

DATE:2 July 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 02 July 2018 at 11:29am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Child Care Centre Manager – No approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 5.19, Schedule 2, cls 186.242, 187.233

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 30 November 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 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 Child Care Centre Manager. 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 of Schedule 2 to the Regulations because the applicant was not subject to an approved nomination.

   Background

6. The applicant applied for the visa on the basis of being nominated by her employer, Mungindi Helping Hands Family Daycare Pty Ltd. An application by Mungindi Helping Hands Family Daycare Pty Ltd to the Department for approval of the nomination was refused by the Department on 24 May 2017. As the requirement that the Minister approve the nomination under cl. 186.233 of Schedule 2 had not been satisfied, the delegate found that the applicant did not meet the criteria in cl. 186.242 of Schedule 2 and refused the application.

7. Mungindi Helping Hands Family Daycare Pty Ltd and the applicant applied to the Tribunal for a review of the decision to refuse the nomination application and the visa application. The applicant appeared before the Tribunal on 8 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Stacey Garside. The applicant was represented in relation to the review by her registered migration agent

8. On 13 June 2018, the Tribunal affirmed the decision to refuse the nomination application by Mungindi Helping Hands Family Daycare Pty Ltd. On 14 June 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act providing this information. The applicant was advised that the information was important as cl. 186.233 requires that the nomination be approved. The applicant was requested to respond to this information by 28 June 2018.

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 whether the applicant meets the requirement of cl. 186.233.

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.186.233 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. The Tribunal has considered the submissions of the applicant. The applicant has not provided evidence of an approved nomination.

13. The refusal of the related nomination application by Mungindi Helping Hands Family Daycare Pty Ltd by the Department has been affirmed by the Tribunal on review on 13 June 2018. This was the nomination that was the subject of the declaration when the visa application was lodged by the applicant. This means that there is no nomination before the Tribunal which has been approved. Therefore, cl. 186.233(3) is not met.

14. The Tribunal finds that cl 186.233 is not met.

15. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

    Penelope Hunter
    Member