Gomez (Migration)

[2019] AATA 3117

Gomez (Migration) [2019] AATA 3117 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rodel Gomez
Mrs RACHEL Gomez
Miss LUISA ANDREA GARCIA Gomez

CASE NUMBER:  1830306

HOME AFFAIRS REFERENCE(S):          BCC2018/1020991

MEMBER:R. Skaros

DATE:2 May 2019

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 02 May 2019 at 1:31pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Program or Project Administrator – nomination not approved – applicant working at nominating business – nominator will lodge new nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 379A(5), 362B
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 4 March 2018. 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 Program or Project Administrator 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 indicated that the relevant nomination was refused by the Department on 23 August 2018.

7. On 12 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 26 February 2019, the applicant wrote to the Tribunal requesting an extension of time to provide a response. The Tribunal wrote to the applicant on 26 February 2019 granting the extension of time and informing the applicant that his response should be received by 16 March 2019.

8. The applicant responded on 18 March 2019. In his response, the applicant submitted that his sponsoring employer is supporting him until a new nomination application is lodged. The applicant stated that he has worked for his sponsoring employer from 10 October to the present and requested that he be given time to gain more experience and complete the requirements for the visa. It was submitted that the employer is building their capacity to lodge a new nomination so the applicant can lodge another Subclass 187 visa.

9. On 8 April 2019 the Tribunal wrote to the review applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicants to give evidence and present arguments at a hearing on 30 April 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

10. No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

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 relevant nomination has been approved.

    Nomination of a position

13. 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.

14. 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 he identified in his visa application as having transaction reference number EGOHK1GTQV (the associated nomination). The delegate’s decision record indicates that on 23 August 2018 the associated nomination was refused by the Department.

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

16. On review, the applicant was requested to provide information about whether the associated nomination has been approved or whether an application for review of the nomination refusal had been made. In the written response to the Tribunal the applicant made no reference to the refusal of the associated nomination and no information has been provided to suggest that the decision to refuse the associated nomination has been set aside.

17. The Tribunal has considered the evidence that the nominating employer will reapply for another nomination in respect of the applicant, however, in relation to the provision requiring approval of the nomination, the Courts have indicated that only the nomination made at the time of visa application can be relied on to satisfy the requirement in cl.187.233.[1] Accordingly, any new nomination that may be lodged by the applicant’s employer in future would not assist the applicant in this review. In the circumstances, there would be no merit in delaying the making of the decision in this case.

    [1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application.

18. The Tribunal acknowledges that the applicant is currently working for the nominating employer and wants to remain in Australia to gain further experience. However, the purpose of a review is to determine the issues on which a case turns. There is no provision in the legislation to consider the applicant’s circumstances in this matter and nor can the Tribunal permit the applicant to remain in Australia so that he can gain further experience.

19. The issue that must be determined in this case is whether the associated nomination has been approved. The Tribunal has had regard to the claim that the employer will lodge another nomination in future, however, in this case, a new nomination would not assist the applicant in satisfying the requirement in cl.187.233(3).

20. 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. There is no evidence before the Tribunal, and the applicant has not claimed, that the decision refusing the nomination has been overturned. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

21. 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.

22. 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

23. 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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.