Pena Arias (Migration)

[2018] AATA 1644

Pena Arias (Migration) [2018] AATA 1644 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Diana Carolina Pena Arias
Mr John Stiven Florez Jimenez
Ms Valentina Florez Pena

CASE NUMBER:  1801990

DIBP REFERENCE(S):  BCC2016/2402577

MEMBER:Denise Connolly

DATE:2 May 2018

PLACE OF DECISION:  Perth

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

Statement made on 02 May 2018 at 3:53pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Disability Support Worker – Employed under a Subclass 457 visa – New employer refused to sponsor the applicant – Sponsorship nomination withdrawn – Request for Ministerial Intervention – No serious, ongoing and irreversible harm – Decision under review affirmed

LEGISLATION
Migration Act 1958 s 65,
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 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 19 July 2016. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Disability Support Worker. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination lodged in respect of the applicant was withdrawn and so not approved.

6. The applicants appeared before the Tribunal on 2 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

9. 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.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nomination application of which the applicant was the subject, lodged by Rocky Bay Inc, was withdrawn on 29 November 2017. Accordingly the delegate found that the nomination was not approved and cl.187.233(3) was not met.

11. The applicant has provided written submissions to the Tribunal including her contract of employment with Rocky Bay Inc dated 15 July 2016 to work as a Disability Services Officer.  A Statutory Declaration attested on 17 October 2016 by an officer of Rocky Bay Inc was also provided to the Tribunal. It stated there was a need for a paid employee within the business, and that Rocky Bay was supportive of the applicant, however at that time it was not willing to sponsor her.

12. The applicant has also provided her own Statutory Declaration regarding her migration history and the background to her employment with Rocky Bay. In summary the applicant and her husband first arrived in Australia in 2009 holding student visas, having just finished their physiotherapy degrees in Colombia. The applicant finished various courses in Australia and secured employment in Brisbane as an aged/disability services worker. She was sponsored and granted a Subclass 457 visa in June 2013. In May 2015 she engaged a migration agent to assist her to apply for Subclass 186 visa sponsorship. The migration agent failed to lodge her visa application and her then sponsor advised they were not financially able to sponsor the Subclass 186 visa.  On advice from a migration agent the applicants looked for other sponsorship opportunities. They paid Mr Edward Ted Kang, a migration agent, $12,000 and were introduced to Milana South Coast Pty Ltd (Milana).  They were led to believe that Milana would sponsor the applicant as a residential care officer and that a nomination application was lodged in September 2015.  However Mr Kang’s business ‘disappeared’ and they found out he had been convicted on fraud charges.  In May/June 2016 the applicant found an advertisement by Rocky Bay Inc recruiting for a new facility in WA. She travelled to Perth from Brisbane for the interview. She explained that she would need to be sponsored. Rocky Bay Inc advised they would not sponsor her Subclass 457 visa but she told them the Subclass 187 sponsorship was different.  She was advised to cancel her Subclass 457 visa before commencing employment with Rocky Bay so Rocky Bay would not be required to meet the Subclass 457 sponsorship obligations. Rocky Bay commenced the nomination application process and the applicant commenced working for them in July 2016.  Subsequently the Regional Certifying Body (RCB) contacted Rocky Bay and was told by someone in HR that Rocky Bay does not sponsor employees. The RCB refused to advise the Minister favourably. In March 2017 the applicant started to have communication issues with Rocky Bay. She later found out she was pregnant.  The applicant has provided other documentary evidence indicating that she went on workers compensation some time in 2017. The evidence indicates she suffered a work related injury and was experiencing bullying in the workplace. It also indicates the applicant believes the employer was trying to find fault in her performance so that she could be dismissed. She provided a copy of a letter dated 7 March 2018 indicating Rocky Bay has been taking disciplinary action in relation to alleged breaches by the applicant.  At the hearing the applicant explained that this has been the cause of stress and anxiety for her and her family.

13. The applicant has also provided letters of support for her and her husband, from friends, employers and co-workers. She has also provided medical evidence indicating that she has received medical treatment for anxiety and depression.

14. The delegate’s decision record, provided to the Tribunal by the applicants, confirms that Rocky Bay Inc withdrew the nomination application on 29 November 2017. At the hearing the Tribunal explained to the applicant that while it appreciated the difficulties she has endured, in these circumstances, it is not able to find that the nomination has been approved as required by cl.187.233(3). The applicant indicated that she understood this and that she wanted her case to be referred to the Minister.

15. The Tribunal has taken into account all of the written and oral evidence provided to it by the applicants. It finds that the nominator Rocky Bay Inc lodged an application for approval of a nomination, identifying the applicant as the nominee but withdrew the nomination application on 29 November 2017.  Accordingly the nomination application of which the applicant is the subject has not been approved.

16. For the applicants to succeed in this review, the associated nomination has to be approved. There is no evidence before the Tribunal that the nomination has been approved. In fact it was withdrawn. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.187.233(3) is not met. It follows that cl.187.233 is not met. There is no evidence before the Tribunal to indicate either of the secondary applicants meets the requirements of cl.187.233.

17. 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.

18. The applicant has asked the Tribunal to refer this matter to the Minister.  In considering this request the Tribunal has had regard to the Minister’s guidelines on ministerial intervention, in particular on cases that should be brought to the Minister’s attention. These relevantly include cases where compassionate circumstances regarding the age and/or health and/or psychological state of the person that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to the person. On the basis of the evidence before it the Tribunal is not certain that the applicants’ circumstances are such that if not recognised would result in serious, ongoing and irreversible harm so it has decided not to refer the matter to the Minister. However it is satisfied that the applicants will pursue this if they believe their case meets this, or other, circumstances such that it should be brought to the Minister’s attention.

    DECISION

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

    Denise Connolly
    Member