Lumajin (Migration)

[2019] AATA 2696

Lumajin (Migration) [2019] AATA 2696 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Christine Mae Lumajin

CASE NUMBER:  1829774

HOME AFFAIRS REFERENCE(S):           BCC2017/3063956

MEMBER:R. Skaros

DATE:17 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2019 at 8:46am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Disabilities Services Officer – nomination refused – no review of nomination refusal made by nominator – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
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 (the Act).

2. The applicant applied for the visa on 24 August 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 (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 Direct Entry stream, to work in the nominated position of Disabilities Services Officer with Frangipani Gentle Care Group Homes Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by Frangipani Gentle Care Group Homes Pty Ltd in relation to the applicant was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicated that the relevant nomination was refused by the Department on 22 August 2018.

7. On 11 February 2019 the Tribunal wrote to the applicant requesting information about whether there is an approved nomination or a pending application for review of the decision to refuse the nomination. On 25 February 2019, the Tribunal received correspondence from the applicant’s representative, relevantly submitting that the applicant had contacted Ms Cynthia Restar of the Frangipani Group Homes, who had assured her that an application for review had been lodged for the related nomination but that Ms Restar would not provide the details of the application. It was submitted that, in the circumstances, the applicant is unable to comment on the status of the nomination

8. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.

9. The applicant was represented in relation to the review by her registered migration agent. The representative attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the relevant nomination has been approved.

    Nomination of a position

12. 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. In addition, this criterion also requires that the nomination has been approved.

13. The applicant applied for the visa on the basis of a nomination of a position made by Frangipani Gentle Care Group Homes Pty Ltd, which she identified in her visa application as having transaction reference number EGOFL2W7LB (the associated nomination). The delegate’s decision record indicates that on 22 August 2018 the associated nomination was refused by the Department.

14. On review, the applicant was invited to provide information about the status of the nomination, to which the representative responded, indicating that the applicant, along with other nominees, had been informed by the nominating employer that a review of the nomination refusal was lodged but the employer would not give them any evidence of this.

15. The Tribunal formed the view that the applicant may have been led to believe that the nominating employer had lodged a review of the associated nomination. Accordingly, using the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which she made the required declaration in her visa application, was refused by the Department on 22 August 2018 and that there is no evidence, either on the Department’s records or the Tribunal’s records, which indicates that the associated nomination has been subsequently approved or that the nominating employer had applied for review of the decision to refuse the associated nomination. The Tribunal explained to the applicant the relevance of the information and informed her that if it relied on the information it would go on to find that she does not meet cl.187.233(3), and had no prospect of meeting that requirement, and that it in the circumstances the decision under review would be affirmed.

16. When asked if she wished to request additional time to respond, the applicant promptly responded stating that it was Ms Restar who lodged the applications for the visa and nomination. She stated that Ms Restar had informed her that everything had been lodged and she was under the impression that she had already been granted a visa. When asked if she was aware that Ms Restar had lodged an employer nomination Subclass 187 visa on her behalf, the applicant confirmed that she was so aware. The applicant stated that she had only found out about the refusals after she attended the meeting that was arranged by Ms Restar, which she and other colleagues attended. The applicant stated that Ms Restar made them believe that she would apply to the Tribunal and they decided to continue to work for her. The applicant stated that she gave them hope about their appeal as they thought an appeal of the nomination refusal would also be lodged.

17. The Tribunal has had regard to the applicant’s evidence and acknowledges that she may have been led to believe by her nominating employer that a review of the nomination had been lodged. However, the information before the Tribunal, which was particularised for the applicant using the procedure in s.359AA, indicates that no review of the nomination refusal, in respect of the applicant, had been made by the nominator. It was submitted that the nominator would not give the applicant evidence of the nomination review. The Tribunal considers that if a review of the nomination refusal had in fact been made, then the nominator would have given evidence of this to the applicant so she could submit it to the Tribunal in support of this application for review. The applicant has not provided any substantiative evidence to support the claim that a review of the nomination had been made. In the circumstances, the Tribunal considers that the applicant has no prospect of satisfying criterion cl.187.233(3) which requires the associated nomination to be approved. 

18. The evidence before the Tribunal indicates that the nomination for the position lodged by Frangipani Gentle Care Group Homes Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, 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.

    DECISION

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

    R. Skaros
    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.