Guzman (Migration)

[2019] AATA 3119

Guzman (Migration) [2019] AATA 3119 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kristine Joy Guzman

CASE NUMBER:  1830366

HOME AFFAIRS REFERENCE(S):          BCC2017/3080678

MEMBER:R. Skaros

DATE:7 May 2019

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 07 May 2019 at 8:10am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – nomination not approved – 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 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 25 August 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 Disabilities Services 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 indicated that the relevant nomination was refused by the Department on 22 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 her response should be received by 16 March 2019.

8. The Tribunal received a written response on 18 March 2019, including a letter dated 16 March 2019 from the applicant indicating that she requires more experience in the nominated occupation and that she has the support of her nominating employer to lodge a new application. The applicant stated that she has worked with her sponsoring employer, who continues to support her so she can apply for a new visa application.

9. The applicant 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 EGOFLFHIMM (the associated nomination). The delegate’s decision record indicates that on 22 August 2018 the associated nomination was refused by the Department.

14. 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. In response, the applicant stated that she understands that she applied for review of the visa refusal without there being a review of the nomination decision but she thought that the Tribunal can allow her to lodge a new nomination. The Tribunal explained to the applicant a new nomination would not assist in this review because the Courts have interpreted the relevant provision in such a way that only the nomination referred to in her visa application, i.e. the associated nomination, can be relied upon to meet the requirement in cl.187.233(3). The applicant enquired as to whether she could lodge another visa application on the basis of a nomination with another employer. The Tribunal noted that it could not provide advice about her visa options and explained that, for the purposes of this review, its concern relates to the associated nomination because, even if she could obtain a new nomination from a different employer, it would not assist in this review.

15. The issue 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 Tribunal has had regard to the applicant’s request for additional time to obtain another nomination either from her nominating employer or another employer, however, as explained to the applicant at the hearing, only the nomination made at the time of the visa application can be relied upon to meet the requirements in cl.187.233(3). In the circumstances, the Tribunal considers it futile to grant the applicant time to obtain another nomination as it will not assist her in this review. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

16. 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.

17. 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.

    DECISION

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

    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.