Nagaike (Migration)

[2018] AATA 5335

Nagaike (Migration) [2018] AATA 5335 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shinya Nagaike

CASE NUMBER:  1722011

HOME AFFAIRS REFERENCE(S):           BCC2017/991960

MEMBER:Peter Emmerton

DATE:29 October 2018

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 29 October 2018 at 10:11am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Secondary Teacher –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 Immigration and Border Protection 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 13 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Secondary Teacher.

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 was not approved.

6. The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Principal of St John’s Catholic College, Mr Cameron Hughes, also presented evidence.

7. The applicant was represented at the hearing by his representative.

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 nomination has been approved.

10. On 21 July 2017 a delegate of the Minister for Immigration refused a nomination application made by St John’s Catholic College, ABN 70 855 009 082.

11. A review application was lodged on 11 August 2017.

12. The Tribunal found that it did not have jurisdiction in this matter on 8 September 2017.

13. Therefore there is no approved nomination to which this visa application relates.

14. The delegate refused Mr Shinya Nagaike’s application for a Regional Sponsored Migration Scheme (subclass187) visa on 28 August 2017, as clause 187.233 is not satisfied.

15. The visa applicant applied to the Administrative Appeals Tribunal, for review of the decision on 16 September 2017

    Nomination of a position

16. 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.

17. 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.

18. The Tribunal explained the course of events leading up to the hearing in order to ensure that the visa applicant understood what had taken place.

19. It was stated that on 21 July 2017 a delegate of the Minister for Immigration refused a nomination application made by St John’s Catholic College, ABN 70 855 009 082.

20. A review application was lodged on 11 August 2017.

21. The Tribunal found that it did not have jurisdiction in this matter on 8 September 2017.

22. Therefore there is no approved nomination to which this visa application relates.

23. The delegate refused Mr Shinya Nagaike’s application for a Regional Sponsored Migration Scheme (subclass187) visa on 28 August 2017, as clause 187.233 is not satisfied.

24. The Tribunal formally explained to the applicant pursuant to s.359AA that the fact that the nomination had been unsuccessful, meant that it was not possible for the visa application to succeed, as it was a requirement of 187.233 that a nomination had been approved by the Minister and not been subsequently withdrawn.

25. The Tribunal then stated that the position to which the visa application relates to is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination of a position made by a different employer, as decided by Judge Smith, 13 May 2016, in Hasan v MIBP. The effect of this means that the visa applicant cannot seek a different nominating entity to support this application.

26. The Tribunal also stated why this was relevant and why this information would be the reason or part of the reason for affirming the decision under review.

27. The applicant was asked if he understood the information and why it was relevant. Mr Nagaike stated that he partly understood the information and why it was relevant. The Tribunal then reiterated the information and checked that it had been comprehended.

28. The Tribunal asked the applicant if he needed time to comment or respond to the information and that he understood the information and why it was relevant. A recess was offered. Mr Nagaike stated that he did require additional time and a recess of 10 minutes was offered by the Tribunal, the visa applicant confirmed that this was adequate following the recess. He confirmed that he understood the information and why it was relevant. Mr Nagaike chose to explain that the mistakes made in the original application came about because of competing demands upon his time and incomplete understanding of the process, He made a brief statement regarding his passion for both his role at the school and his students.

29. The Tribunal also notes that the current Principal stated that the previous Principal had chosen not to engage a legal representative during the nomination and visa application processes. He as the current Principal had a different view and would have engaged legal assistance, had it been his decision at the time.

30. It is noted by the Tribunal that throughout the hearing the Principal of St John’s Catholic College was highly supportive of the applicant. He explained the key academic and pastoral care role Mr Nagaike occupied in the school and the negative impact the cessation of his employment would have upon the school community.

31. 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).

32. Therefore, cl.187.233 is not met.

33. 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

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

    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.