Medina (Migration) - [2019] AATA 3110

Medina (Migration) [2019] AATA 3110 (8 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Angelita Medina
CASE NUMBER:  1829139
HOME AFFAIRS REFERENCE(S):          BCC2018/438243
MEMBER:R. Skaros
DATE:8 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 08 May 2019 at 12:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – nomination not approved – no pending review for refusal decision – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 187.233
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 26 January 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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.
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.
The applicant provided a copy of the delegate’s decision record which indicated that the relevant nomination was refused by the Department on 23 August 2018.
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. The applicant wrote to the Tribunal requesting an extension of time to provide a response. The Tribunal wrote to the applicant on 21 February 2019 granting the extension of time and informing the applicant that her response should be received by 14 March 2019.
The applicant wrote to the Tribunal on 14 March 2019, requesting that the Tribunal consider the application for review in the absence of a nomination. The applicant submitted that she is suitable to apply for a new Regional Employer Nomination. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Medina (Migration) [2019] AATA 3110
Case: [2019] AATA 3110
Decision Date: 8 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant's nomination was made by Frangipani Gentle Care Group Homes Pty Ltd. The delegate of the Department of Home Affairs had refused the nomination, and subsequently refused the visa application when the applicant did not respond to a natural justice letter regarding the nomination refusal. The applicant sought review of the visa refusal decision.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the approval of the nomination. The Tribunal was required to determine if the nomination, which had been refused by the Department and not reviewed by the applicant, met the criteria for the visa.

The Tribunal reasoned that clause 187.233(3) explicitly requires that the Minister has approved the nomination. The evidence before the Tribunal indicated that the nomination had been refused by the Department and no review of this refusal had been sought by the applicant. The Tribunal explained to the applicant that a new nomination from another sponsor could not be relied upon for the current visa application, as only the nomination in place at the time of the application could satisfy the criterion, referencing *Kaur v MIBP* [2017] FCCA 564. The Tribunal also noted that it could not extend the applicant's bridging visa to allow her to seek further employment or sponsorship.

Given that the essential requirement of an approved nomination had not been met, and no review of the nomination refusal had been undertaken, the Tribunal concluded that the visa application had no prospect of success. Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the relevant nomination has been approved.Nomination of a position 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. 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 form as having transaction reference number EGOHSSJ8F (the associated nomination). The delegate’s decision record indicates that on 23 August 2018 the associated nomination was refused by the Department. On 24 August 2018, the Department sent the applicant a natural justice letter inviting her to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and the delegate made a decision to refuse the grant of the visa. On review, the applicant was requested to provide information about the status of the associated nomination, to which she requested the Tribunal consider the review in the absence of a nomination. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233(3) and explained that without the approval of the associated nomination she would be unable to meet that requirement. The applicant stated that she would like to remain in Australia to gain experience and find another sponsor and requested the Tribunal to extend her bridging visa so that she can achieve this. The Tribunal explained to the applicant that the purpose of the review is to determine the issues in the review, which in her case is whether the associated nomination has been approved. The Tribunal explained to the applicant that a new nomination from another sponsor would not assist her in this review as only the nomination in place at the time of the visa application can be relied upon to meet the requirements in cl.187.233(3)[1]. The Tribunal further noted that it could not extend her bridging visa to allow her to remain in Australia and gain work experience and find another sponsor. The Tribunal also noted given the associated nomination had been refused and no review of that decision had been made, meaning the review has no prospect of success, the Tribunal did not consider it appropriate to delay the making of its decision. For these reasons, the Tribunal has decided to proceed to a decision on the information before it. [1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.R. SkarosMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

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