Maramag (Migration)

[2019] AATA 6664

Maramag (Migration) [2019] AATA 6664 (8 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lawrence Maramag
Mr Santino Chrence Maramag
Mrs Cherlita Maramag

CASE NUMBER:  1804042

HOME AFFAIRS REFERENCE(S):          BCC2017/996853

MEMBER:Mark Bishop

DATE:8 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2019 at 11:25am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

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).

2. The applicants applied for the visas on 14 March 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General) 142111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the position to which the application relates did not met the requirements of subparagraph 5.19(4)(h).

6. The applicants appeared before the Tribunal on 14 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant in Case number 1801121.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

10. 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.

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. On 17 October 2019 in case number 1801121, an application by Freelake Pty Ltd as nominator, the Tribunal determined the nominator did not meet the requirements of r.5.19(4)(h)(ii) and affirmed the decision under review to refused the nomination.

13. On 24 October 2019 the Tribunal wrote to the applicant under s.359A and s.359(2) of the Act. The Tribunal provided adverse information to the applicant and provided particulars of that information. The Tribunal invited the applicant to provide information in writing demonstrating that he was the subject of a nomination approved by the minister under r.5.19 as required by cl.187.233(3) of Schedule 2 to the Migration Regulations. The Tribunal advised comments or response should be received by 7 November 2019.

14. The applicant did not respond to the correspondence and did not seek an extension of time to provide comment or respond.

15. The material matter for the Tribunal to determine is whether the applicant has an approved nominating sponsored and position. Given the decision of the Tribunal in Case number 1801121 the applicant does not have an approved nominating sponsor and position.

16. The Tribunal has determined there is no approved nominated sponsor for the position with which the applicant can be engaged. Accordingly the applicant does not meet the requirements of cl.187.233.

17. 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.

    Secondary applicants

18. The secondary applicants in this matter are Santino Chrence MARAMAG and Cherkita MARAMAG. They are members of the family unit of the applicant in this matter.

19. As the applicant was found not to have met the prescribed criteria for a Regional Employer Nomination (Permanent) (Class RN) visa the above named secondary applicants are not members of the family unit of a person who is the holder of a subclass187 visa.

20. Accordingly the Tribunal is not satisfied the secondary applicants satisfy cl.187.311

    DECISION

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

    Mark Bishop
    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.