O'SHAUGHNESSY (Migration)

[2020] AATA 1680

O'SHAUGHNESSY (Migration) [2020] AATA 1680 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amy Catherine O'SHAUGHNESSY

CASE NUMBER:  1806804

HOME AFFAIRS REFERENCE(S):          BCC2017/2936005

MEMBER:Penelope Hunter

DATE:13 May 2020

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 13 May 2020 at 11:19am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Child Care Worker – subject of ­an approved nomination – no response to s 359A letter – not entitled to appear before the Tribunal – 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 16 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 (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 Child Care Worker by her employer PROJECTS ON PARKINSON LTD.

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 lodged by the applicant’s employer was refused by the Department on behalf of t he Minister.

6. The Tribunal received an application to review the Departmental decision from the applicant on 14 March 2018.

7. On 27 April 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related refusal by the Department of the nomination application made by PROJECTS ON PARKINSON LTD on 27 January 2018, and the acceptance of a withdrawal of the review application filed by PROJECTS ON PARKINSON to the Tribunal on 17 April 2020. The Tribunal explained the relevance of the information and informed the applicant that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements of cl.186.233(3).

8. The invitation was sent to the applicant via their appointed representative at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 11 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The Tribunal is satisfied that the invitation was properly sent to the applicant’s notified email address. The invitation informed the applicant that the comments had to be provided in writing by 11 May 2020. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) a 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.

10. In the circumstances, the Tribunal has decided to proceed to decision on the information before it.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the nomination associated with the applicant’s visa application has been approved.

    Nomination of a position

12. 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.

13. 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.

14. The applicant applied for the visa on the basis of a nomination in the position of Child Care Worker made by PROJECTS ON PARKINSON LTD. As set out in the invitation to comment provided to the applicant, the Department refused the nomination application made PROJECTS ON PARKINSON LTD 27 January 2018.

15. PROJECTS ON PARKINSON LTD had applied to the Tribunal for a review of the Department’s decision to refuse the nomination. On 17 April 2020 the Tribunal accepted a withdrawal of the review application filed by PROJECTS ON PARKINSON LTD and finalised the review of the nomination application. On the evidence before the Tribunal it finds that the relevant nomination for the applicant’s current visa application has not been approved. It therefore follows that the applicant does not meet cl.187.233(3) and cl.187.233 of Schedule 2 to the Regulations is not met as a whole.

16. 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

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

    Penelope Hunter
    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.