Maher (Migration)

[2018] AATA 1681

Maher (Migration) [2018] AATA 1681 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Louise Marie Maher
Mr Darren Michael Kavanagh

CASE NUMBER:  1711251

DIBP REFERENCE(S):  BCC2016/3136038

MEMBER:Denise Connolly

DATE:2 May 2018

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 02 May 2018 at 1:15pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry scheme – Nominated position – Secretary – Nomination refused – Practice and procedure – Applicant overseas – Did not attend hearing – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 360, 360A
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 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 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 21 September 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Secretary. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 application made by The Trustee For Cousin’s Family Trust, of which the applicant was the subject, was refused on 31 March 2017.

6. The Tribunal invited the applicant to a hearing scheduled for 2 May 2018 at 10am. The hearing invitation was sent to the applicant at the email address provided to the Tribunal in connection with the review.  The applicant responded to the hearing invitation indicating that she and her partner had departed Australia and would be unable to attend the hearing. The applicant did not seek a postponement of hearing.

7. The Tribunal is satisfied that the applicant was invited to appear before the Tribunal to give evidence and present arguments under s.360 of the Act. The Tribunal is satisfied that the applicant was sent a notice under s.360A of the Act giving the day and the time on which he was scheduled to appear. The Tribunal is satisfied that the notice met all of the requirements of s.360A. The Tribunal finds that the applicant did not appear before the Tribunal because she has left Australia. There was no request for a postponement of hearing.

8. Where an applicant is invited under s.360 to appear before the Tribunal and the applicant does not appear at the scheduled date and time, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The applicant has not sought a postponement of hearing or provided any further evidence in relation to the issue as to whether she meets cl.187.233. The Tribunal will therefore not use its discretion to reschedule the applicant's appearance. The Tribunal will now proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it.

9. 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

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. 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.

12. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 31 March 2017 the nomination application lodged by The Trustee for Cousin’s Family Trust, of which the applicant is the subject, was refused. On 6 April 2017 the applicant was given an opportunity to comment on the information. She did not respond. The delegate found that the applicant did not meet the requirement that she be the subject of an approved nomination: cl.187.233(3).

13. The applicant has not provided any further evidence as to why the delegate’s decision is wrong. On the basis of the evidence before it the Tribunal finds the applicant was identified in a nomination made by The Trustee for Cousin’s Family Trust. It was on the basis of this nomination application that the applicant lodged her visa application. For the applicant to succeed in this review, the associated nomination has to be approved. There is no evidence before the Tribunal that the nomination has been approved. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.187.233(3) is not met. It follows that cl.187.233 is not met by the applicant. There is no evidence before the Tribunal to indicate that the second named applicant meets the primary criteria.

14. 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

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

    Denise Connolly
    Member