Pasaporte (Migration)

[2019] AATA 3125

Pasaporte (Migration) [2019] AATA 3125 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Michelle Pasaporte
Ms Tracy Cabrera
Ms Georgette Mikhaela Cabrera

CASE NUMBER:  1834515

HOME AFFAIRS REFERENCE(S):          BCC2018/1343632

MEMBER:R. Skaros

DATE:21 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2019 at 12:59pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – subject of an approved nomination – nomination application refused – no pending review of application – 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 March 2018. 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 the Direct Entry stream, to work in the nominated position of Disabilities Services Officer with Frangipani Gentle Care Group Homes Pty Ltd.

5. The delegate refused to grant the visas because the primary visa applicant (the applicant) did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by Frangipani Gentle Care Group Homes Pty Ltd in relation to the applicant was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicated that the relevant nomination was refused by the Department on 23 August 2018.

7. On 14 February 2019 the Tribunal wrote to the applicant requesting information about whether there is an approved nomination or a pending application for review of the decision to refuse the nomination. On 25 February 2019, the Tribunal received correspondence from the applicant’s representative, relevantly submitting that the applicant had contacted Ms Cynthia Restar of the Frangipani Group Homes, who had assured her that an application for review had been lodged for the related nomination but would not provide the details of the application. It was submitted that the applicant is unable to make an informed comment regarding the nomination. The representative also indicated that they are aware that the nominating employer may be under investigation by the federal police.

8. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.

9. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

10. The Tribunal has before it an electronic copy of the Department’s file which includes a certificate issued under s.375A of the Act. The certificate provides that disclosure of certain information contained in the identified folios would be contrary to the public interest as they record information in relation to ABF Regional Investigation NSW and contain internal investigative operational procedures and information.

11. The Tribunal formed the view that the certificate is valid as it provides a valid ground of public interest immunity. In any case, the Tribunal did not consider the information contained in the relevant folios to be relevant to the issue on which this case turned, which relates to whether the relevant nomination has been approved.

12. At the hearing, the Tribunal gave the applicant a copy of the s.375A certificate, which the representative viewed. The Tribunal explained to the applicant that while the information refers to an investigation of the nominating employer, which she and her representative may be aware of given the reference to it in the written submissions, the information is not of itself relevant to the issue in the review, which is whether the relevant nomination has been approved.  The applicant indicated that she had no comment to make on the validity of the certificate and stated that she is aware of an investigation and had been contacted by the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the relevant nomination has been approved.

    Nomination of a position

15. 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. In addition, this criterion also requires that the nomination has been approved.

16. The applicant applied for the visa on the basis of a nomination of a position made by Frangipani Gentle Care Group Homes Pty Ltd, which she identified in her visa application form as having transaction reference number EGOHQZFN2Q (the associated nomination). The delegate’s decision record indicates that on 23 August 2018 the associated nomination was refused by the Department.

17. On 24 August 2018, the Department sent the applicant a natural justice letter inviting her to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and the delegate made a decision to refuse to grant the visas.

18. On review, the applicant was invited to provide information about the status of the nomination, to which the representative responded, indicating that the applicant, along with other nominees, had been informed by the nominating employer that a review of the nomination refusal was lodged but that the employer would not give them any evidence of this.

19. The Tribunal formed the view that the applicant may have been led to believe that the nominator had lodged a review of the associated nomination. Accordingly, using the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which she made the required declaration in her visa application, was refused by the Department on 23 August 2018 and that there is no evidence, either on the Department’s records or the Tribunal’s records, which indicate that the associated nomination has been subsequently approved or that the nominating employer had applied for review of the decision to refuse the associated nomination. The Tribunal explained to the applicant the relevance of the information and informed her that if it relied on the information it would go on to find that she does not meet cl.187.233(3), and had no prospect of meeting that requirement, and that it in the circumstances the decision under review would be affirmed.

20. When asked if she required additional time to respond to the information, the applicant promptly responded stating that she did not become aware of the refusal of the nomination until much later. She discussed the issue of the nomination refusal with her employer and was made to believe that a review of the refusal had been lodged with the Tribunal. The applicant also gave evidence about her dealings with her employer to date and her communication with the Department regarding information that was in her application which she indicated had been incorrectly provided by her employer.

21. The Tribunal explained to the applicant that it had no discretion in her case and must make its decision in accordance with the relevant legislative provision. The applicant indicated she understood.

22. The Tribunal has considered the applicant’s response. The Tribunal acknowledges the applicant’s evidence that she was informed by her nominating employer that a review of the nomination refusal had been made, however, the evidence before the Tribunal, including the Tribunal’s database records and the Department’s records, indicates that no review of the nomination refusal had been made. Furthermore, the applicant has not provided any evidence which suggests that any such review had been made by the nominator. The Tribunal acknowledges the matters raised by the applicant about the conduct of the nominator, however, as explained to the applicant at the hearing, the Tribunal has no discretion in these matters as there is no provision in the legislation to take into account the applicant’s circumstances or the nominator’s conduct.

23. The issue before the Tribunal is whether the associated nomination has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Frangipani Gentle Care Group Homes Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3).  Therefore, cl.187.233 is not met.

24. 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.

25. The secondary applicants applied for the visa as members of the family unit of the first named applicant. As the first named applicant does not meet the requirements for the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    Member

    
    

    ATTACHMENT A

    187.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.