Naganuma (Migration)

[2022] AATA 782

Naganuma (Migration) [2022] AATA 782 (28 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tasuku Naganuma

CASE NUMBER:  1907696

HOME AFFAIRS REFERENCE(S):          BCC2017/2859965

MEMBER:Mary Sheargold

DATE:28 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 28 March 2022 at 8:28am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – related nomination application refused and application for review withdrawn – late response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

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 (Cth) (the Act).

2. The applicant applied for the visa on 10 August 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of Cook, ANZSCO 351411.

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 application made by T Kuramoto & T Yaguchi for the position of Cook was not approved.

6. On 28 February 2022, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Cook made by T Kuramoto & T Yaguchi was refused by a delegate of the Minister of Home Affairs, and that the nominators had applied to the Tribunal for review of that decision, but had recently withdrawn their application.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 15 March 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and prepare arguments.

8. The applicant did not provide the comments within the prescribed period and no extension was sought nor was one granted.  In these circumstances, s.359C applies, and pursuant to s.360(3) of the Act, the 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.

9. On 16 March 2022, the Tribunal wrote to the applicant noting that it had not received any comments or response to its invitation dated 28 February 2022 and advised the applicant that a telephone hearing listed for 25 March 2022, to which he had been separately invited, had been cancelled due to the effect of ss.360(3) and 363A of the Act.  The Tribunal noted that the applicant had indicated his intent to attend the telephone hearing as scheduled, and invited him to make any written submissions in support of his application by 23 March 2022.

10. On 21 March 2022, the provided 6 character references in support of his application, and on 22 March 2022, he provided written comments in support. These are discussed below.

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 there is an approved nomination.

    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 reg 1.13A and reg 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 22 March 2022, the Tribunal received a letter from the applicant dated 18 March 2022.  He states that the Tribunal’s letter dated 28 February 2022 sent by email ‘somehow failed to reach [him]’, citing flooding in northern New South Wales from 28 February 2022 to 13 March 2022 causing him to be ‘without internet mobile and landline signal or service due to flooding.’  He states he only became aware of the Tribunal’s correspondence when the letter dated 16 March 2022 was received.

16. The applicant provided written submissions in support of his application.  He stated: “I wish there was another way to secure my visa other than by nomination” and thanked the Tribunal for hearing him and considering his application.  He then stated:

    To be honest I would be incredibly grateful to be the recipient of a miracle right now.

    Should one be unavailable I would be thankful for a fair and reasonable amount of time to save money for safe passage back to my country of origin.

    I feel to inform you I have a friend who has recently embarked on a new business venture. After the required waiting period he is willing to Sponsor me with my visa in the future.

17. The Tribunal has also considered the 6 character references provided on 21 March 2022, and whilst noting its sympathies for the applicant in the current circumstances, finds these references do not assist the applicant to demonstrate that he is the subject of an approved nomination to support his application, being the issue under consideration in this decision.  Of particular note, one referee observed that the applicant had not been able to secure his nominators’ support because he was not suitable for the nominated position, but noted he was a hard worker who deserved a second chance to secure employment to remain in Australia.  The Tribunal accepts the referees’ assertions that the applicant has integrated into his local community and is well liked and respected.  However, the Tribunal notes that this does not assist the applicant to demonstrate he has an approved nomination to support his visa application.

18. The nominators’ nomination application was refused by the Department, and the Tribunal accepted the nominators’ withdrawal of their review application. As the nomination application for the position to which the applicant’s Subclass 187 visa relates has not been approved, it follows that the applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations

19. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105 where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1).  It is to that act that the via applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind.  The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

20. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.187.233(3) in relation to his application.  The nomination by GSA Enterprise Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

21. Therefore, cl 187.233(3) 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.

    Mary Sheargold
    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

    (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.