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

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).
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).
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.
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.
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.
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.
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.
The applicant responded on 18 March 2019. In his response, the applicant submitted that his sponsoring employer is supporting him until a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gomez (Migration)

Details

AGLC: Gomez (Migration) [2019] AATA 3117
Case: [2019] AATA 3117
Decision Date: 2 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, made by Mr. Gomez. The applicant's nomination was made by Frangipani Gentle Care Group Homes Pty Ltd. The Administrative Appeals Tribunal was required to review the decision of the delegate to refuse the grant of the visa.

The primary legal issue before the Tribunal was whether the nomination associated with Mr. Gomez's visa application had been approved, as required by clause 187.233 of the Migration Regulations. The Tribunal also considered whether a future nomination by the employer could satisfy this requirement.

The Tribunal reasoned that the delegate had refused the nomination on 23 August 2018, and the applicant had not responded to a subsequent natural justice letter. No information was provided to suggest that the refusal decision had been set aside. The Tribunal noted that case law, specifically *Kaur v MIBP* [2017] FCCA 564, established that the nomination relied upon to satisfy clause 187.233 must be the one made at the time of the visa application. Therefore, a new nomination lodged by the employer in the future could not assist the applicant in this review. The Tribunal acknowledged the applicant's current employment with the nominating business and his desire to remain in Australia, but found no legislative provision to consider these circumstances or permit his continued stay for further experience.

The Tribunal affirmed the decision not to grant the visa to Mr. Gomez. As the primary applicant had not met the visa requirements, the Tribunal also affirmed the decision in respect of the secondary applicants, who had applied as members of his family unit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the relevant nomination has been approved.Nomination of a position 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.R. SkarosMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

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