LAOSOPAPHAN (Migration)

[2021] AATA 1301

LAOSOPAPHAN (Migration) [2021] AATA 1301 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Pichayapa LAOSOPAPHAN
Miss Karnjaporn CHANGKRUT

CASE NUMBER:  1813035

HOME AFFAIRS REFERENCE(S):          BCC2016/2550027

MEMBER:Mr S Norman

DATE:31 March 2021

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 31 March 2021 at 10:52am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cafe or Restaurant 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 2 August 2016. 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 this case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cafe or Restaurant Manager (ANZSCO: 141111).

5. On 4 May 2018, the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations.

6. The applicants appeared before the Tribunal on 4 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the representative of the associated nominator (Ms Swan). The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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 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. On 27 March 2018, the nomination lodged by REVIVAL ALRIGHT AUSTRALIA PTY LTD, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister.  On the same date, a natural justice letter was sent to the authorised recipient of the applicant requesting a response within a prescribed time. At the time and date of the delegate’s decision, no response was received. As the nomination was refused, the delegate found that cl.187.233(3) was not met.

11. Next, the delegate assessed the application under the Residence Transition stream. Under regulation 187.223 the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of and was not assessed under sub-regulation 5.19(3), the applicant did not meet regulation 187.223. The delegate then assessed the applicant’s claims under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant does not meet the requirements of regulation 187.242. The delegate also assessed the claims under cl.187.311 (membership of the family unit). However, as no person met the primary criteria for the grant of the visa, none were entitled to the visa based on their membership of the family unit of a person who had.

12. The delegate then refused to grant the Regional Sponsored Migration Scheme (Subclass 187) visa.

13. By s.359A letter of 15 March 2021 (emailed to the authorised recipient), the Tribunal advised that on 12 March 2021, it had affirmed the Department decision relating to the associated nominator (AAT # 1808853). 

14. Further, that this was relevant as cl.187.233(3) requires that the nomination made in relation to the applicant by their nominating employer had been approved; and that if the Tribunal relied on this information, it may find the nomination in relation to the applicant had not been approved and consequently, the decision under review should be affirmed. The Tribunal advised the applicant they should respond in writing by 29 March 2021. No response had been received at the time and date of this decision. In the circumstances of this case, the Tribunal has decided to proceed to a decision without giving the applicant any further chance to respond.

15. That being said, and based on the evidence before the Tribunal, I am not satisfied the applicant/s met cl.187.233(3); and that cl.187.233 is not met. 

16. 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

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

    Mr S Norman
    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.