Gabriel (Migration)

[2018] AATA 2940

Gabriel (Migration) [2018] AATA 2940 (16 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ian Edward Gabriel

CASE NUMBER:  1711047

DIBP REFERENCE(S):  BCC2016/2862591

MEMBER:Kate Millar

DATE:16 July 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 16 July 2018 at 10:08am

CATCHWORDS
Migration – Regional Employment Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry Scheme – Nomination approval – Tribunal affirmed nomination refusal – Applicant reapplied for a new nomination – Practice and Procedure – Submissions provided by the applicant – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994, Schedule 2 cl 187.233

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 Mr Gabriel a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Gabriel applied for the visa on 29 August 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), and Mr Gabriel must satisfy the primary criteria to be granted the visa. 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, Mr Gabriel is seeking the visa in the Direct Entry stream, to work in the nominated position of drainer. 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 Mr Gabriel did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination of the position had not been approved.

6. In a decision dated 6 June 2018, the Tribunal affirmed the decision not to approve the nomination. 

7. On 8 June 2018 the Tribunal wrote to Mr Gabriel 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 was that the Tribunal had affirmed the decision not to approve the nomination of the position.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 22 June 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and Mr Gabriel would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. Mr Gabriel did not provide comments within the prescribed period and no extension was granted. In these circumstances, s.359C applies and pursuant to s.360(3) he is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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. The Tribunal has decided to proceed to decision without taking further steps to obtain any comments.

10. Despite Mr Gabriel having lost his right to a hearing, he provided a submission on 3 July 2018 stating he had a pending nomination with the same employer.  This information has been taken into account in coming to a decision on this matter.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the nomination has been approved as required by cl.187.233(2).

13. As the Tribunal has affirmed the decision to refuse the nomination, Mr Gabriel does not meet this requirement at the time of this decision.

14. Mr Gabriel has submitted he is the subject of a new nomination.  This does not mean there is an approved nomination at this point in time.

15. Therefore, cl.187.233 is not met.

16. Mr Gabriel 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

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

    Kate Millar
    Member