HO (Migration)

[2020] AATA 732

HO (Migration) [2020] AATA 732 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Lan Trinh HO
Mr Ngoc Minh NGUYEN
Mr Minh Tien NGUYEN
Ms Ngoc Lan Thu NGUYEN

CASE NUMBER:  1925681

HOME AFFAIRS REFERENCE(S):          BCC2018/970627

MEMBER:Karen Synon

DATE:12 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 March 2020 at 4:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – non-appearance before the Tribunal – Direct Entry stream – Pastry Cook – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), 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 28 February 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ’Pastrycook’.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by ‘YUMYUM CAFÉ BAKERY PTY LTD’ was refused on 25 July 2017.

6. The applicants applied for review of the primary decision on 12 September 2019 and provided a copy of the department’s decision.

7. The applicants were represented in relation to the review by their registered migration agent.

8. On 11 February 2020 the Tribunal wrote to the applicants, via their authorised recipient and registered migration agent, inviting them to a hearing to present evidence and arguments in relation to their case on 12 March 2020.  The invitation also relevantly asked the applicant to provide, within 7 days of 11 February 2020 “all documents you intend to rely on to establish that you meet the criteria for the visa”.

9. The applicants were further relevantly advised:

   If you do not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable you to attend before it. 

10. No response was received to the hearing invitation 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.

11. Section 362B(2) provides the Tribunal with a discretion to reschedule the applicants’ appearance before it or to delay its decision on the review in order to enable their appearance to be rescheduled.  The Tribunal has therefore considered whether it would be appropriate in the circumstances of this case to exercise this discretion in the applicant's favour.

12. The Tribunal notes the visas were refused on 27 August 2019 and the review application was lodged on 12 September 2019.  The applicants have not provided any substantive submissions to the Tribunal since the application for review was lodged, nor was any response received to the Tribunal’s hearing invitation.

13. Further, the Tribunal’s records confirm that text messages reminding the applicants of the hearing were sent to the applicant’s advised mobile telephone number at 11am on 4 March 2020 and at 11am on 11 March 2020.

14. Finally, the Tribunal also notes that the applicants have been represented throughout the review by a registered migration agent and therefore have had the benefit of migration advice.

15. In these circumstances, and for the reasons set out below, the Tribunal has determined not to exercise its discretion under s.362B(2) to enable the applicants’ appearance to be re-scheduled.  Therefore, 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is cl.187.223.

    Nomination of a position

18. 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.

19. 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 r.1.13A and r.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.

20. Information available to the Tribunal from the visa application form confirms that the applicant applied for a Subclass 187 visa in the Direct Entry Scheme for the nominated position of ‘Pastrycook’.  Further, the primary decision (a copy of which was provided to the Tribunal) records that this position nomination made by ‘YUMYUM CAFÉ BAKERY PTY LTD’ was refused on 25 July 2017.

21. As the applicant is not the subject of an approved nomination of a position which is the one that was the subject of the declaration that was required to be made as part of the current visa application, he does not satisfy cl.187.233.

22. 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.

23. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 187 visa, the secondary applicants also do not satisfy the secondary criteria for the grant of the visa, in particular cl.187.311 which requires that an applicant must be a member of the family unit of a person who holds of a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    DECISION

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

    Karen Synon
    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.