KOWALSKA (Migration)

[2018] AATA 5366

KOWALSKA (Migration) [2018] AATA 5366 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marta Magdalena KOWALSKA
Mr Konrad Piotr GRECZYNSKI

CASE NUMBER:  1606770

HOME AFFAIRS REFERENCE(S):           BCC2015/2512202

MEMBER:Denise Connolly

DATE:5 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 November 2018 at 10:58am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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 Immigration and Border Protection 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 29 August 2015. 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 Personal Assistant.  

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination associated with the visa application was not approved.

6. The applicants appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.

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

8. 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

9. 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.

10. 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.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nominator Konrad Greczynski (trading as Conrad Care Painting) lodged an application for approval of a nomination. (Mr Greczynski is also the secondary visa applicant.) The nomination application was refused by the delegate on 24 March 2016. The delegate in this case concluded therefore that the applicant does not meet cl.187.233(3) which requires that the Minister has approved the relevant nomination.

12. Konrad Greczynski sought review of the decision to refuse the nomination. The Tribunal combined the hearings for the nomination review and this matter. The Tribunal explained to the applicant that if it affirmed the decision to refuse to approve the nomination, the applicant would not meet the requirement that the nomination has been approved. It explained that, in those circumstances, it would write to the applicants seeking their comments or response.

13. On 17 October 2018 the Tribunal affirmed the decision to refuse to approve the nomination application, made by Konrad Greczynski, for approval of a nomination in the Direct Entry stream.

14. On 19 October 2018 the Tribunal wrote to the applicants under s.359A inviting their comments on, or response to, the information that on 17 October 2018 the Tribunal affirmed the decision to refuse to approve the nomination application made by Konrad Greczynski. The Tribunal explained that this information is relevant because if relied on the Tribunal would find that the applicant does not meet cl.187.233(3) and it would affirm the Department’s decision. The response was due on 2 November 2018. The applicants did not respond.

15. On the basis of the evidence before it, the Tribunal finds the nomination made by Konrad Greczynski, the nomination referred to in cl.187.233(1), has been refused. Therefore the nomination has not been approved and cl.187.233(3) is not met.  There is no evidence before the Tribunal to indicate that the second named applicant meets the requirements of cl.187.233. Therefore, cl.187.233 is not met.

16. Since the main applicant is unable to meet cl.187.233 the second named applicant is unable to meet cl.187.311(a).

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Denise Connolly
    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.