Jordan (Migration)

[2022] AATA 2210

Jordan (Migration) [2022] AATA 2210 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Claire Jordan

CASE NUMBER:  1914412

HOME AFFAIRS REFERENCE(S):          BCC2017/2036477

MEMBER:P. Maishman

DATE:29 June 2022

PLACE OF DECISION:  Perth

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

Statement made on 29 June 2022 at 11:04am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Retail Manager – subject of ­an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 June 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(2) of Schedule 2 to the Regulations because there was not an approved nomination for the nominated position.

6. The applicant appeared before the Tribunal on 13 May 2022 and 27 June 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file.

9. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The Tribunal received written submissions on 26 and 27 April 2022 and oral evidence at the hearings.

10. On 30 May 2022 the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting her to provide comments on information that it considered would be part of the reason for affirming the decision under review:

    The application for approval of the nominated position made by The Trustee for BP
    Trust (the nominator) was refused by a delegate of the Minister for Home Affairs.
    The nominator sought a review of that decision, but it was recently affirmed by the
    AAT. This means that the nominator’s application for the nominated position has
    not been approved.

11. The letter indicated that the above information was relevant because the Tribunal may find that the applicant did not meet the requirements of cl.187.233, which requires there to be an approved nomination in relation to the applicant.

12. The Tribunal received a written response from the applicant on 12 June 2022. The Tribunal arranged a second hearing for 27 June 2022. The Tribunal declined the applicant’s request to postpone the second hearing but accommodated the applicant’s work commitments and conducted the hearing during her lunchtime.

13. The applicant’s oral evidence was unambiguous and consistent with her written submissions. The applicant described she had been residing in Australia for nearly 10 years, working and paying all her taxation and Medicare obligations. The applicant described an abusive and exploitative employment situation she has endured and is aggrieved that her diligence does not carry any weight in support of her visa application. The Tribunal is satisfied the applicant is a credible witness and accepts her evidence at face value.

14. The Tribunal is not unsympathetic to the applicant’s position. The Tribunal expects the applicant will pursue her allegations of abuse and exploitation with the appropriate authorities. The issue before the Tribunal is however narrow and there is no discretion in the law to reach a favourable visa outcome.

15. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

16. 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.

17. 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.

18. In this case the applicant applied for a Subclass 187 visa based on the nomination application lodged by The Trustee for BP Trust, being the nomination referred to in cl 187.233(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 8 June 2017. The nomination application was refused by a delegate of the Minister on 18 January 2019. Consequently, on 16 May 2019 the applicant's Subclass 187 visa was refused by the delegate on the basis that there was no approved nomination.

19. The Trustee for BP Trust applied to the Tribunal for review of the decision made on 18 January 2019 to refuse the nomination application. On 30 May 2022 the Tribunal affirmed the decision to refuse the nomination application. This means the matter has been finally determined and there is no approved nomination as required under cl 187.233(3) of Schedule 2 to the Regulations.

20. Therefore, cl 187.233 is not met.

21. 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

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

    P. Maishman
    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

    (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.