Madolora (Migration)

[2021] AATA 2679

Madolora (Migration) [2021] AATA 2679 (5 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maureen Pascua Madolora
Mr Jay Calantoc Madolora
Miss Monique Jayden Pascua Madolora

CASE NUMBER:  1830180

HOME AFFAIRS REFERENCE(S):          BCC2018/2544193

MEMBER:Michelle East

DATE:5 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 05 July 2021 at 2:09pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Temporary Residence Transition stream – position of Retail Supervisor – no approved nomination – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.223, 187.311; rr 1.13, 5.19

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 (Cth) (the Act).

2. The applicants applied for the visas on 6 July 2018. 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Retail Supervisor.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination lodged by the nominator was refused by the delegate.

6. The applicants appeared before the Tribunal on 14 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from her sponsor, Mr Creasey.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The applicant confirmed at the hearing that she was happy to proceed by telephone and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. On 18 June 2021 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing.  The invitation stated in part;

   On 14 September 2018, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of Swanstar Nominees Pty Ltd. On 17 June 2021, the Tribunal affirmed the Department’s decision to refuse the nomination. Consequently, the decision made by the Department on 3 September 2018, to refuse the nomination, stands.

9. The invitation further stated that;

   This information is relevant to the review because in deciding whether Mrs Madolora satisfies the requirements of clause 187.223(2) of Schedule 2 of the Regulations, that clause requires that the Minister has approved the nomination (being the nomination referred to in paragraph 187.223(1)).

   If the Tribunal relies on this information in making its decision, it will make a finding that there is no approved nomination in which Mrs Madolora is the nominee for the purpose of cl.187.223. This may lead the Tribunal to find that that criterion is not met. This is an impediment to the visa being granted by the Department of Immigration and Border Protection for Mrs Madolora.

10. 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 2 July 2021, 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.

11. The review applicants have not provided the comments within the prescribed period and no extension has been granted.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is the subject of an approved nomination.

    Nomination of a position

15. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

16. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in reg 5.19)

    ·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.

17. On 17 June 2021 this Tribunal decided to affirm the decision refusing the nomination by Swanstar Nominees Pty Ltd.  Based on the evidence before it, the Tribunal is satisfied that at the date of its decision the applicant is not the subject of an approved nomination.  The Tribunal finds the applicant does not satisfy cl.187.223(2).

18. Therefore, cl.187.223 is not met.

19. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

20. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 187 visa, the secondary applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.187.311 which requires that the applicant must be a member of the family unit of a person who, having satisfied the primary criteria is the holder of a Subclass 187 visa.

    DECISION

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

    Michelle East
    Member

    
    

    ATTACHMENT A

    187.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position to which the application relates is located in regional Australia.

    (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.