Olabe (Migration)

[2023] AATA 2612

Olabe (Migration) [2023] AATA 2612 (28 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ronilo Rupido Olabe
Ms Richelle Annie Olabe
Ms Rochere Aubrey Olabe
Master Richard Danniel Olabe
Ms Dienice Mariano

REPRESENTATIVE:  Mr Pat Illidge (MARN: 1571288)

CASE NUMBER:  1934644

HOME AFFAIRS REFERENCE(S):          BCC2017/3079895

MEMBER:Namoi Dougall

DATE:28 July 2023

PLACE OF DECISION:  Sydney

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

In relation to all other applicants, the Tribunal does not have jurisdiction in this matter.

Statement made on 28 July 2023 at 12:31pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Massage Therapist – no approved nomination – nominating business went into liquidation – applicant’s new business engages permanent residents – request for Ministerial Intervention – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 347, 351, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; 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 the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 25 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Massage Therapist.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(5) of Schedule 2 to the Regulations, because the position of Massage Therapist with Alternate Body Works Pty Ltd (the nominating business) is no longer available to the applicant. As they had gone into liquidation and the nominated position was redundant, therefore, it was refused by a delegate for the Minister on 28 August 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. Departmental movement records show that the secondary applicants were not in the migration zone at the time the Department made the decision to refuse to grant the Subclass 187 visas on 6 December 2019 or when the application for review of those decisions was lodge with the Tribunal on 7 December 2019. The Tribunal finds that the secondary applicants were not in the migration zone at the relevant time. As such, the application for review, in so far as it relates to the secondary applicants, is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter.

7. The applicant appeared before the Tribunal on 20 July 2023 to give evidence and present arguments.

8. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is still available to the applicant.

Nomination of a position

1. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

2. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the 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.

3. On 6 July 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment or respond to adverse information by 20 July 2023. The adverse information was that the applicant had applied for the Subclass 187 visa on the basis of a nomination of a position made by the nominating business. However, on 23 September 2019, a director of the nominating business provided informed the Department that the business was going into liquidation on 21 June 2019 and the applicant’s employment would cease on 21 June 2019. The Tribunal’s letter also stated that the information is relevant as it indicates that the nominating business can no longer employ the applicant. If the Tribunal makes that finding, then the Tribunal will not be able to find that the nominated position is still available, and that the applicant does not meet the requirements of a Subclass 187 visa: cl.187.223(5).

4. On 13 July 2023, the applicant responded to the Tribunal’s letter from 6 July 2023 with a submission and supporting documents. The submission set out the applicant’s migration history, including that on 31 August 2021 the applicant was granted a Subclass 491 visa. Departmental records confirm the grant, and that it is valid for 5 years from the grant of the visa. The submission also set out the circumstances that led to the applicant being made redundant on 21 June 2019, including earlier redundancies and reinstatements, frequent changes of employment conditions which the applicant claims was ‘significant exploitation’ on behalf of his former employer, the business nominator. The applicant provided supporting information in relation to his employment history. The applicant also stated that his nominating business ceased to trade on 11 September 2019. The applicant is currently self-employed as a Massage Therapist.

5. The nominating business on 13 September 2019 informed the Department that it would be going into liquidation on 21 June 2019 and the applicant’s employment in the nominated position of Massage Therapist would cease on the same day. The applicant’s submission and evidence at the hearing confirm that the position of Massage Therapist with the nominating business is no longer available. The applicant confirmed at the hearing that he does not work for the nominating business and has his own massage business. Therefore, the Tribunal is not satisfied that the nominated position is still available to the applicant.

6. Accordingly, cl 187.233 is not met.

7. 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.

8. As the first named applicant does not satisfy cl.187.233 for the grant of a Subclass 187 visa, it follows that the secondary applicants do not meet cl.187.311 for the grant of a Subclass 187 visa.

Ministerial Intervention

1. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

2. At the hearing, the applicant confirmed that he holds a Subclass 491 based on qualifications and skills assessment. The applicant wants the Tribunal to refer to the matter because of the unfairness. When he signed a contract with the nominating business, he was promised he would be sponsored for permanent residency and he worked for more than 2 years expecting permanent residency but this did not happen.

3. The applicant is the only person included on the Subclass 491 visa, and he has been away from his children and family for 6 years. He lost his partner, and he has not seen his kids. The children are in the Philippines with his parents. His children are 28, 26 and 22 but when he applied, they were still children. The youngest is studying dentistry. The eldest is a doctor and the second child is an engineer.

4. The applicant engages contractors in his business, one of who is a permanent resident and one who has applied to permanent resident. There are 6 other contractors who are Australian citizens. The contractors set their own schedule and he provides the clients, the rooms and all the things they need. He pays them per hour and splits the fees, with 60% going to them.

5. On 27 July 2023, the Tribunal was provided with a submission. It was submitted that the ground the request was based on was

   ·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case

6. The submission referred to the applicant’s business. The submission set out the circumstances in detail of the applicant’s exploitation by his nominating sponsor. It was further submitted that as a result of his treatment by his nominating sponsor, he has been separated from his children for 6 years and they have not been able to migrate with him and this is an unfair and unreasonable outcome.

7. The Tribunal notes that the applicant was granted a Subclass 491 visa on 9 March 2020 and that the applicant’s children are adults and 2 have professional occupations, although the youngest may be dependent as he is still studying.

8. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

DECISION

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

   In relation to all other applicants, the Tribunal does not have jurisdiction in this matter.

Namoi Dougall
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.