Hout (Migration)

[2021] AATA 3139

Hout (Migration) [2021] AATA 3139 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yvonne Marianne Jolanda Hout
Mr Teun Michiel Regina Surminski

CASE NUMBER:  1917295

HOME AFFAIRS REFERENCE(S):          BCC2018/2439001

MEMBER:Nicola Findson

DATE:20 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 20 July 2021 at 12:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Office Manager –no approved nomination – not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, 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 (Cth) (the Act).

2. The applicants applied for the visas on 6 June 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 (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 Office Manager (ANZSCO 512111).  

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, because there was no approved nomination.

6. The applicant applied to the Tribunal for review of the Department’s decision on 29 June 2019, and with the application provided a copy of the delegate’s decision record.

7. The applicants appeared before the Tribunal on 18 May 2021, to give evidence and present arguments. The Tribunal exercised its discretion to hold a Microsoft Teams video hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of the matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted in this way. The applicants did not raise any concerns in relation to holding a video hearing.  The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent.  However, the migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

10. 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.

11. 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.

12. On 17 February 2021, the Tribunal wrote to the applicants, via their registered migration agent, pursuant to s.359A of the Act.  This letter followed an outcome in a matter (1913780) which related to the nomination of the relevant position by the applicant’s employer, Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust.  The letter invited the applicants to comment or respond to information that the application for approval of the nominated position made by Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust was refused by a delegate of the Minister, and, although Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust had sought a review of the refusal decision, it had subsequently withdrawn its review application. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. By way of response, on 1 March 2021, the applicants provided a written submission to the Tribunal. The submission sets out the circumstances in which Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust had withdrawn its review application in relation to the nomination, as well as attaches documents in support of the claims.  The submission (and supporting material) indicates that the applicant’s employment was unfairly terminated by her nominating employer and that the applicants have fallen victims of unprecedented circumstances. The applicants submit that remaining in the South West region of Western Australia is very important to them, and that the Covid-19 pandemic had made it impossible to travel offshore to apply for a new visa.  It is submitted that the applicant has a 14 year-old, Australian citizen son, who is settled in Australia and in close contact with his Australian biological father and grandparents, and that there would be much hardship and disruption to the applicants, as well as their Australian family, if they were forced to leave Australia.  IT is submitted that the applicants give much to their local community; have worked hard to recently establish their own business; and that the applicant is now working for another Finance Mortgage Broker.

14. At the hearing the Tribunal explained to the applicants the requirements of cl.187.233.  In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision.  The Tribunal acknowledged the difficulties the applicant had endured in relation to the withdrawal of the nomination and explained that while it had a great deal of sympathy for her situation, in these circumstances, it is not able to find that the nomination has been approved as required by cl.187.233.  The Tribunal also explained that cl.187.311 requires secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 187 visa on the basis of satisfying the primary criteria for the grant of the visa. The applicants indicated that they understood the requirements for the visa.

15. The applicant reiterated her claims to the Tribunal that she had worked hard for her sponsoring employer, with an expectation that a permanent visa would ultimately be granted.  She indicated that she and the second-named applicant had lived in Australia for many years, and that they – with her son – wished to remain in Australia and continue to be valuable members of their community.  The applicants told the Tribunal that they intended bringing their matter to the Minister for Intervention, with the assistance of their representative.

16. The issue in the present case is whether the applicant meet the requirements of cl.187.233.

17. On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 6 June 2018, the applicant was the subject of a nomination application by Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust for the position of Office Manager.  The Tribunal further finds that the nomination application lodged by Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust was refused by the Department on 13 May 2019, and although Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust sought review of the refused nomination, the review application was subsequently withdrawn

18. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.187.233(3) is not met.  It follows that cl.187.233 is not met.

19. 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.

20. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second-named applicant does not satisfy the secondary criteria for the visa.  Consequently, the second-named applicant does not satisfy cl.187.311 and the decision under review must be affirmed in respect of him.

21. The Tribunal acknowledges the difficult situation faced by the applicants, as the refusal of the visas means that it appears the applicants will be subject to a bar imposed by s.48 of the Act, which prevent them from making another application in Australia for an employer-sponsored temporary or permanent visa.  The Tribunal also acknowledges that the situation of the applicants is further complicated by the Covid-19 pandemic which has restricted international travel, and thus, their ability to apply for another visa from outside Australia.  However, as discussed with the applicants at the hearing, the Tribunal does not have any discretion to waive the requirements of cl.187.233 or cl.187.311, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.

    DECISION

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

    Nicola Findson

    
    

    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.