Long (Migration)

[2019] AATA 3154

Long (Migration) [2019] AATA 3154 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jessica Catherine O'Hanlon

CASE NUMBER:  1621345

HOME AFFAIRS REFERENCE(S):          BCC2016/1100289

MEMBER:Nicola Findson

DATE:23 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 23 July 2019 at 9:57am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – no response to s 359A invitation – not entitled to appear before the Tribunal – member of family unit – de facto partner – relationship ceased with primary visa applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.311

CASES
Hasran v MIAC [2010] FCAFC 40

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. In the present case, the applicant made a combined application with her then de facto partner, the primary visa applicant, as a member of his family unit, for the visa on 14 March 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. The delegate refused to grant the visa because the primary visa applicant did not meet cl.187.233 of Schedule 2 to the Regulations because he was not the subject of a nomination approved by the Minister. Accordingly, the applicant, as a member of the family unit of the primary visa applicant who was unable to meet cl.187.233, was also unable to meet the criteria – cl.187.311 - for the grant of her visa.

5. The applicant and the primary visa applicant applied to the Tribunal for a review of the Department’s decision on 13 December 2016, and with the application provided a copy of the delegate’s decision record.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. 

8. On 26 June 2019, the Tribunal wrote to the applicant, via her migration agent, pursuant to s.359A of the Act, and invited her to comment or respond to information it had received during the review process, that she was no longer in a de facto relationship with the primary visa applicant. The letter indicated that the information was relevant to the review because it may lead the Tribunal to find that she is not the de facto partner of the primary visa applicant and therefore not a member of his family unit.  In addition, the letter set out that if it relied on the information in making its decision, this would lead the Tribunal to find that she does not satisfy the secondary criterion in cl.187.311 for the grant of the visa. 

9. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 10 July 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the applicant’s comments.

11. A secondary applicant must be a member of the family unit of a person who satisfies the criteria for the grant of a subclass 187 visa.  The evidence before the Tribunal, which is accepted by the Tribunal, is that the applicant has separated from the primary visa applicant.  The Tribunal therefore finds that the parties no longer have a mutual commitment to a shared life to the exclusion of all others; the relationship between them has ceased; and they no longer live together. The Tribunal finds that the applicant is no longer a member of the primary visa applicant’s family unit.  On this basis, the applicant cannot meet cl.187.311, and therefore does not meet the criteria for the grant of the visa.

    DECISION

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

    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

    (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.