Gyurcsikne Deme (Migration)

[2022] AATA 4201

Gyurcsikne Deme (Migration) [2022] AATA 4201 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Bernadett Gyurcsikne Deme
Mr Jozsef Gyurcsik
Mr Krisztian Gyurcsik
Mr Dorina Gyurcsik

CASE NUMBER:  1921896

HOME AFFAIRS REFERENCE(S):          BCC2017/4907996

MEMBER:Penelope Hunter

DATE:25 October 2022

PLACE OF DECISION:  Sydney

2DECISION:  The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 25 October 2022 at 4:37pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Hair or Beauty Salon Manager – no approved nomination – sponsor placed into liquidation – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 349, 351, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 (Cth) (the Act).

2. The applicants applied for the visas on 21 December 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 (Cth) (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Hair or Beauty Salon Manager (ANZSCO 142114).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the associated nomination lodged by the applicant’s nominating employer Mode Hairdressing (QLD) Pty Ltd had not been approved.

6. On 8 September 2022,  the Tribunal wrote to the visa applicants and invited them to attend a hearing by telephone, to give evidence and present arguments, on 24 October 2022.

7. On 15 September 2022, the Tribunal received a request from the applicant to reschedule the hearing as the applicants were planning holidays at the end of October 2022. The Tribunal agreed to the request and rescheduled the hearing for 4 October 2022. On 19 September 2022, the applicant responded to the hearing invitation requesting that the original hearing date be restored, and the Tribunal consented to this request.

8. On 19 September 2022 the Tribunal wrote again the applicants pursuant to the provisions of s 359A of the Act inviting the applicants to provide comment on information that it considered would be a reason or a part of the reason for affirming the decision under review in writing. The relevant information was that on 1 November 2021, the Tribunal had received advice from the Liquidators of Mode Hairdressing (QLD) Pty Ltd that the company had been placed into liquidation which was finalised on 26 August 2019, and that on 10 December 2021 the Tribunal had dismissed the review application lodged by Mode Hairdressing (QLD) Pty Ltd. The Tribunal explained the relevance of the information and informed the applicants if it relied on the information that it may find that the relevant nomination had not been approved and/or that the position was not available to the applicant. The Tribunal may then go on to find that the applicant did not meet the requirement of cl 187.233(3) and clause 187.233(5) Schedule 2 to the Regulations and they would be reasons or part of the reasons for the decisions under review to be affirmed.

9. On 3 October 2022, the applicant provided a response to the Tribunal invitation and she confirmed that the information provided by the Tribunal was true and correct. However, the applicant requested that the Tribunal consider the circumstances of all visa applicants holistically and wished to present evidence to the Tribunal at a hearing, with a view to the Tribunal considering whether the matter should be referred to the Minister for consideration.

10. The applicant only appeared before the Tribunal on 24 October 2022 by telephone to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies cl 187.233.

    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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

15. The applicant confirmed in her submissions to the Tribunal, and in her evidence at hearing, that she was aware that the granting of visa was dependent upon the approval of the related nomination. The applicant has submitted to the Tribunal that she felt that the original decision to refuse the nomination was unfair, and for this reason had pursued a review before the Tribunal. Then, while she was awaiting the review of the decision her employer went into liquidation. This was also a situation outside her control, and although the director offered to employ her again under a new entity she had outstanding concerns about the payment of her employee entitlements, and those of others, under the old company.

16. On the information before it, which the applicant does not dispute, the application to review the nomination refusal by Mode Hairdressing (QLD) Pty Ltd was refused by the Tribunal on 21 December 2021. The Tribunal finds that the relevant nomination has not been approved. It therefore follows that the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

17. It is not necessary for the Tribunal to make further findings the Tribunal also had regard to the fact that due to the liquidation of Mode Hairdressing (QLD) Pty Ltd it also is not satisfied that the position would still be available to the applicant and she does not met cl 187.233(5) of Schedule 2 to the Regulations.

18. 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.

19. Therefore, cl 187.233 is not met.

20. The second, third and fourth named visa applicants have applied for the visa as a member of the family unit of a person who satisfies the primary criteria. As the Tribunal has found that the applicant does not satisfy one of the primary criteria it follows that the second, third and fourth named visa applicants do not meet the secondary criteria for the visa. There is no evidence that the second, third or fourth named visa applicant would otherwise meet the primary criteria.

    Ministerial intervention request

21. The applicant has acknowledged in submissions and her evidence to the Tribunal that her requirements of cl 187. 233 cannot be met. The applicant has also requested that the Tribunal consider whether the matter should be brough to the attention of Minister for intervention pursuant to s 351 of the Act.

22. Section 351 of the Act provides that if the Minister thinks it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under s 349 of the Act another decision, being a decision that is more favourable to a visa applicant, whether or not the Tribunal had the power to make that decision. A referral to the Minister is not lightly made by the Tribunal and the current guidelines for Ministerial intervention as set out on the Department’s website.[1]

    [1] Ministerial intervention (homeaffairs.gov.au)

23. The applicant has raised issued with the delay in processing the initial visa application and the delay of the review application and the toll that this has taken on her family. Additionally, that the circumstances relating to her nominator going into liquidation are outside her control. There has been the turmoil of the pandemic and the benefit that the applicant clams that she and the second named visa applicant have contributed to the Australian workforce. The applicant is concerned about the situation in Ukraine and its impact on the rest of Europe if she was to return to Hungary with her family. It is also accepted that the applicant and her family, particularly the children visa applicants, are settled in Australia and that they would like to remain. While there are a number of factors raised by the applicant that may fall within the guidelines. It is not on the current evidence demonstrated that they are unique and exceptional, and for this reason the Tribunal declines to make the referral.

24. The exercise of the discretion by the Minister is non-compellable. There is nothing to suggest, and to the knowledge of the Tribunal, no policy directs that a referral made by the Tribunal is treated more favourably that a request made directly by and applicant to exercise powers under s 351 of the Act.

25. It remains open to the visa applicants to directly request themselves, or with the assistance of a qualified representative, the exercise of powers under s 351 of the Act by the Minister. With more detailed information and supporting documentation they could further raise how their circumstances meet the Ministerial interventional guidelines and identify unique and exceptional circumstances.

26. As to the applicant’s request for an assessment of other migration outcomes, it is not the role of the Tribunal to be an advisor or advocate for the applicants. Its task it to determine whether a particular visa applicant meets the particular visa criteria under review. This is a further matter in which they may wish to seek the advice or assistance of an appropriately qualified representative.

    decision

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

    Penelope Hunter
    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.