Mukai (Migration)

[2020] AATA 5630

Mukai (Migration) [2020] AATA 5630 (20 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kaori Mukai

CASE NUMBER:  1803520

HOME AFFAIRS REFERENCE(S):          BCC2016/4020950

MEMBER:Karen McNamara

DATE:20 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2020 at 5:27pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager (General) – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 Ms Kaori Mukai (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 23 November 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, Ms Kaori Mukai is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations which required Ms Kaori Mukai to be the subject of an approved nomination. The delegate found that the nomination lodged by Sandford Superstores Pty Ltd ATF The Sandford Investment Trust (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 19 December 2017.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The applicant applied to the Tribunal on 9 February 2018 for review of the delegate’s decision.

8. On 15 October 2020, Ms Kaori Mukai appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Anthony Sandford (the nominator) in the related matter for the nomination application (AAT Case file 1800436). The related matters were heard concurrently in a combined hearing.

9. 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.233. 

    Nomination of a position

13. 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.

14. 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.

15. On the 4 November 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Sandford Superstores Pty Ltd ATF The Sandford Investment Trust (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.

16. On 5 November 2020, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to her comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Sandford Superstores Pty Ltd ATF The Sandford Investment Trust, which the Tribunal explained was relevant to the applicant meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.

17. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 19 November 2020 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.

18. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

19. At the hearing of 15 October 2020, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in her case, her visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

20. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

21. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

22. 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

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

    Karen McNamara
    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.