Menga (Migration)

[2019] AATA 924

Menga (Migration) [2019] AATA 924 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sara Menga

CASE NUMBER:  1805432

HOME AFFAIRS REFERENCE(S):           BCC2016/4296866

MEMBER:Alan McMurran

DATE:18 March 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 18 March 2019 at 10:59am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
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 20 December 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 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 Hotel Service Manager, ANZSCO 431411.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because the nomination of the applicant by Mantra Hospitality Admin Pty Ltd (Mantra) was withdrawn before approval and the applicant was therefore not the subject of a nomination approved by the Minister.

6. The applicant was invited to appear before the Tribunal on 20 February 2019 to give evidence and present arguments. The applicant did not appear and did not respond to the hearing invitation. The Tribunal has therefore elected to proceed to a decision on the information before it.

   Background

7. The Tribunal has had regard to the information on its case file, and electronic records from the Department’s file[1].

   [1] BCC 2016 4296866 - 2110596766

8. The applicant is a 32-year-old Italian citizen who arrived in Australia on a tourist visa on 4 October 2011. The applicant subsequently obtained a student visa and studied at the Canberra Institute of Technology, where the applicant obtained an AQF Certificate III in Hospitality and a Certificate IV in English for employment in 2014/15, and a Diploma in Hospitality, and an Advanced Diploma in Hospitality in June 2016.

9. The applicant has an extensive employment history in hospitality, working in restaurants and hotels. As at the date of application, the applicant was working at Peppers Gallery Hotel as a food and beverage team leader.

10. On 27 September 2017, a nomination lodged by Mantra in favour of the nominee, was withdrawn by the nominator. The Department sent a letter to the applicant on 24 January 2018 advising her about the withdrawal and that “as there is no possibility of your application being approved you may wish to withdraw your application, if so you must advise the Department in writing.”

11. The nomination was subsequently refused by the Department and the applicant notified on 22 February 2018 of that decision. The applicant then sought this review by application lodged 1 March 2018.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant is the subject of a nomination approved by the Minister as required by the sub-regulation 187.233(3).

    Nomination of a position

14. 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.

15. 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

16. In support of the application, the Tribunal notes that the applicant has relied upon the information previously supplied to the Department, before its decision refusing the nomination and the visa.

17. On 7 December 2018, the Tribunal sent a letter to the applicant and informed her in part as follows:

    “Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a subclass 187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa.”

18. The applicant was requested to respond and provide information by 21 December 2018. The Tribunal received an email from the applicant on 12 December 2018. In that email the applicant set out in part as follows:

    “Thank you for your correspondence in regard of my nomination for the 187 Visa. I’m going to inform you that my nomination was approved from my former workplace. They withdrew it because I resigned on the 20th September 2016 from the company.

    My resignation was due to the unprofessional behaviour of my former manager”

19. The applicant continued and stated further:

    “I have to let you know that I currently live in Fiji, I’m here for work until July 2019, so for any communication, I suggest to write to me via email rather than call.

    I sincerely believe I deserve the permanent residency in Australia because I studied and worked very hard for 7 years, I got good results at school and in the IELTS tests, and I will be happy at least to have my case reviewed.

    I honestly did nothing wrong in Australia, my police check is clear, I paid for all of my studies and visas and I got my nomination withdraw because of the lack of transparency from the company were I invested all of myself in.”

20. The Tribunal responded on 20 December 2018 to the applicant confirming the Tribunal had received her email and receipt confirmation request.

    Findings

21. The Tribunal is satisfied on the information before it that a nomination application lodged on behalf of the applicant was withdrawn by the nominator on 27 September 2017, and subsequently refused by the Department on 22 February 2018. The nomination refusal is not subject to any review.

22. As a consequence, the Tribunal finds that the applicant is not the subject of a nomination which has been approved by the Minister and is therefore unable to satisfy that primary criterion for a subclass 187 visa in the Direct Entry stream.

23. The Tribunal further finds there are no other facts, matters or circumstances to which it might have regard concerning this review by the visa applicant, other than the email information referred to above from the applicant. The applicant is currently not working in Australia and has not provided any information concerning an adjournment request or alternative sponsorship.

24. The Tribunal finds that cl.187.233 is not met.

25. 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

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

    Alan McMurran
    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.