Muldoon (Migration)

[2020] AATA 214

Muldoon (Migration) [2020] AATA 214 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Muldoon

CASE NUMBER:  1804820

HOME AFFAIRS REFERENCE(S):           BCC2017/346720

MEMBER:Peter Emmerton

DATE:4 February 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 04 February 2020 at 10:23am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Solid Plasterer – no response to s 359A invitation – not entitled to appear before the Tribunal – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 25 January 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Solid Plasterer, ANZSCO 333212.

5. 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 had not been approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the nomination has been approved.

8. On 25 January 2017, the applicant’s sponsoring employer, Yeoro Pty Ltd applied for approval for a nomination for the position of Solid Plasterer, ANZSCO 333212. Mr Thomas Muldoon is the nominee for the position. On 10 January 2018 the Department refused the application on the basis the nomination did not satisfy 5.19(4)(h)(ii)(A) of the Regulations. In a separate decision, the Department refused Mr Muldoon’s subclass 187 visa application because Yeoro Pty Ltd’s nomination was not approved.

9. Yeoro Pty Ltd and Mr Muldoon applied to the Tribunal to review the Department’s decisions.

10. On 11 December 2019, the Tribunal affirmed the decision under review to refuse Yeoro Pty Ltd’s nomination for the position of Solid Plasterer, (ANZSCO 333212.[1]

    [1] AAT Migration and Refugee Division Case No. 1802512

11. On 13 December 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised him that the Tribunal had affirmed the decision under review to refuse the nomination.

12. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, he cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

13. The applicant was advised that if he cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Home Affairs refusing the visa.

14. The applicant was invited to provide a written response by 27 December 2019. The letter advised the applicant that if he did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

15. The applicant responded to the letter on 1 January 2020, requesting an extension of time to provide the information.

16. The review applicant did not provide the information within the prescribed period and no extension of time was requested within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

17. The Tribunal wrote to the applicant on 24 January 2020, stating that the request for extension was too late and that the review applicant had lost any entitlement it might otherwise have had under the Migration Act to appear before it and to give evidence and present arguments. The Tribunal also stated that it would consider any evidence provided to it, prior to the decision being made on 4 February 2020.

18. At the time of making this Decision no reply was received in response to the letter dated 24 January 2020. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

    Nomination of a position

19. 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), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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).

20. 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.

21. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

22. Therefore, cl.187.233 is not met.

23. 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

24. The Tribunal affirms the decision not to grant the applicant’s Regional Employer Nomination (Permanent) (Class RN) visa.

25. Peter Emmerton

    
    

    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.