Paluga (Migration)

[2023] AATA 3258

Paluga (Migration) [2023] AATA 3258 (5 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jon Misael Pontero Paluga
Mrs Judelyn Milay Paluga
Ms Joanna Martina Milay Paluga

REPRESENTATIVE:  Ms Sholeh Saiedi (MARN: 1385039)

CASE NUMBER:  1924921

HOME AFFAIRS REFERENCE(S):          BCC2018/2408860

MEMBER:Namoi Dougall

DATE:5 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2023 at 12:57pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – carpenter – subject of approved position nomination – related nomination application refused and application for review withdrawn – nominating employer sanctioned and bankrupt – continuing work in same business under different ownership – intention to apply for another subclass visa – members of family unit – wife’s work and daughter’s study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 187.311

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 5 August 2019. 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 Temporary Residence Transition stream, to work in the nominated position of Carpenter.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application lodged by Trade Building Supplies Pty Ltd (the nominating business) was refused by a delegate for the Minister on 30 July 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. The applicants appeared before the Tribunal on 14 September 2023 to give evidence and present arguments.

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

8. 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 the subject of an approved nomination.

Nomination of a position

1. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

2. In addition, this criterion also requires that:

   ·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 located in regional Australia (as defined in reg 5.19)

   ·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 31 August 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on at the hearing or respond to adverse information. 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 buisness and that on 30 July 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal finalised the matter as a withdrawal on 11 May 2023.

4. The Tribunal’s letter also stated that if the Tribunal made the above findings, it would also find that that the nomination of the position lodged by your nominating employer and which the applicant relied on when lodging their visa application, has not been approved. If the Tribunal makes this finding, then it will also find that the applicant does not meet all of the requirements for the grant of a Subclass 187 visa, particularly cl.187.233 and the delegates decision not to grant you a Subclass 187 visa will be affirmed.

5. On 13 September 2023, the applicant responded to the Tribunal’s letter of 31 August 2023. The applicant provided his English language test results and a statement. In his statement he provided information as to his work and migration history including that his nominating buisness employer could not continue with the nomination due to being sanctioned and eventually bankruptcy. However, he had continued to work for the same buisness under different ownership. His daughter is studying a Bachelor of Biomedicine and his spouse works as a full time consultant in Foreign Exchange and Money Transfer.

6. At hearing the Tribunal explained the above criteria, particularly the criterion requiring the position to be the subject of an approved nomination was explained to the applicant comprehensively. The applicant confirmed that he understood these requirements. Further, the Tribunal explained that the nomination must be the one that was the subject of the declaration made as part of the current visa application. The applicant confirmed that she understood this requirement. The documentation indicated that the applicant was working for his nominating business during this period.

7. At the hearing the applicant stated that he has applied for his skilled assessment, and he has to wait for at least 3 months for the assessment. The applicant stated that the applied on 10 July 2023. The Tribunal asked if there were any other assessments that need to be done before the applicants can apply for a Subclass 491 visa and the applicant started no, as he already has his English language results. The Tribunal agreed to delay making its decision until 4 October 2023.

8. On 30 July 2019, the Department the Department refused the nomination of position which the applicant’s Subclass 187 visa application relates. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal finalised the matter as a withdrawal on 11 May 2023. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination.

9. Therefore, cl 187.233 is not met.

10. 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.

11. As the primary applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicants as members of the applicant’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the secondary applicants named, do not satisfy cl.187.311.

DECISION

1. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Namoi Dougall

Member

ATTACHMENT A

187.223(1)     The position to which the application relates is the position:

(a)nominated in an application for approval that:

(i)identifies the applicant in relation to the position; and

(ii)is made in relation to a visa in a Temporary Residence Transition stream; and

(c)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 Minister has approved the nomination.

(3)     The nomination has not subsequently been withdrawn.

(3A)    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.

(4)     The position to which the application relates is located in regional Australia.

(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.