Fernandez (Migration)

[2019] AATA 3151

Fernandez (Migration) [2019] AATA 3151 (7 May 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mae Anne Fernandez
Miss Athenee Glare Gabrielle Fernandez
Mr Gerald Paul Fernandez

CASE NUMBER:  1828949

DIBP REFERENCE(S):  BCC2017/2588716

MEMBER:R. Skaros

DATE OF DECISION:  7 May 2019

DATE CORRIGENDUM

SIGNED:13 May 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In Error:

Date on front page of decision record reads: 7 May 2018

Correction:

Should read: 7 May 2019

R. Skaros
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mae Anne Fernandez
Miss Athenee Glare Gabrielle Fernandez
Mr Gerald Paul Fernandez

CASE NUMBER:  1828949

HOME AFFAIRS REFERENCE(S):          BCC2017/2588716

MEMBER:R. Skaros

DATE:7 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 May 2019 at 8:30am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Residential Care Officer – nomination not approved – applicant currently studying and employed – nominating employer did not lodge review with tribunal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 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 (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 Residential Care Officer with Frangipani Gentle Care Group Homes Pty Ltd.

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 nomination of the position lodged by Frangipani Gentle Care Group Homes Pty Ltd in relation to the applicant was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the relevant nomination was refused by the Department on 22 August 2018.

7. On 11 February 2019 the Tribunal wrote to the applicant requesting information about whether there is an approved nomination or a pending application for review of the decision to refuse the nomination. On 22 February 2019, the applicant wrote to the Tribunal providing some response and requesting an extension of time to provide a further response. The Tribunal wrote to the applicant on 22 February 2019 granting the extension of time and informing the applicant that her response should be received by 14 March 2019.

8. The applicant provided a further response on 14 March 2019. The applicant requested that the Tribunal consider the application for review in the absence of a nomination. The applicant submitted that she undertakes volunteer work in the aged care facilities and that she has worked in disability services sector. The applicant provided a Confirmation of Enrolment in Certificate IV in Ageing Support with Inspire Education Pty Ltd, an IELTS test report form and a signed letter from the nominating employer indicating that the applicant is employed on a casual basis. The applicant also provided a copy of her clinical placement register dated December 2015 and a signed vocation placement agreement dated 18 March 2019.

9. The applicants appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the relevant nomination has been approved.

    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. In addition, this criterion also requires that the nomination has been approved.

13. The applicant applied for the visa on the basis of a nomination of a position made by Frangipani Gentle Care Group Homes Pty Ltd, which she identified in her visa application form as having transaction reference number EGOF7Q8VEX (the associated nomination). The delegate’s decision record indicates that on 22 August 2018 the associated nomination was refused by the Department.

14. On 24 August 2018, the Department sent the applicant a natural justice letter inviting her to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and the delegate made a decision to refuse the grant of the visas.

15. On review, the applicant was requested to provide information about the status of the associated nomination, to which she requested the Tribunal consider the review in the absence of a nomination.

16. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233(3) and explained to her that without the approval of the associated nomination she would be unable to meet that requirement. The applicant stated that she found out about the nomination refusal when she received a copy of the letter refusing her visa which was sent to her directly by the Department. She stated that she was under the impression that she needed to complete her Certificate IV to meet the criteria. When asked if she had spoken to her nominating employer about the status of the nomination, she stated that her employer informed her that they did not apply to the Tribunal for review of the nomination refusal and told her that they (the nominating employer) can appeal to the Federal Court. The Tribunal noted that there is nothing before it to indicate that nominator had lodged any appeal and that in the absence of evidence that the associated nomination has been approved or has some prospect of approval, the only conclusion open to the Tribunal is that the requirement in cl.187.233(3) cannot be satisfied. The applicant indicated she understood.

17. The issue that must be determined in this case is whether the associated nomination has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Frangipani Gentle Care Group Homes Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. The applicant conceded that the associated nomination had been refused and gave evidence that her employer informed her that no review of that nomination had been made with the Tribunal. The Tribunal acknowledges the applicant’s evidence that the nominating employer told her that they can apply to the Federal Court, however, there is no substantive evidence before the Tribunal which suggests that an application for judicial review of the Department’s decision to refuse the approval of the associated nomination has been made or is forthcoming. The Tribunal considers that if the nominating employer had any intention of appealing the nomination refusal then they would have applied to the Tribunal for review of that decision. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

18. The Tribunal acknowledges that the applicant is currently completing studies in Australia and that she is currently employed. However, as explained to the applicant at the hearing, there is no provision in the legislation to take into account her personal circumstances and the Tribunal is required to make its decision in accordance with the relevant legislative requirements.

19. As the nomination, against which the applicant made the relevant declaration in the visa application, has not been approved, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

20. 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.

21. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. As the first named applicant has not met the requirements for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.