Penuela Bernal (Migration)

[2022] AATA 3556

Penuela Bernal (Migration) [2022] AATA 3556 (12 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Cesar Hernando Penuela Bernal
Mrs Claudia Patricia Castillo Valencia
Miss Maria Jose Penuela Castillo
Miss Janah Penuela Castillo

REPRESENTATIVE:  Mr Adewale Oladejo

CASE NUMBER:  1917595

HOME AFFAIRS REFERENCE(S):          BCC2017/3624060

MEMBER:Terrence Baxter

DATE:12 October 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 12 October 2022 at 8:35am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – screen printer – subject of approved position nomination – related position nomination refused – joint hearing of nomination and visa reviews – nomination refusal affirmed and nominator considering legal options – no response from applicants to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 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 4 October 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 Screen Printer for Barry Scott Signs Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 11 June 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 11 May 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole.

6. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 2 July 2019.

7. The first named and second named applicants appeared before the Tribunal on 20 July 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the nomination application of the nominator.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicants were represented in relation to the review by Mr Adawale Oladejo of Visatec Legal of 1 Queens Road, Melbourne Victoria. The representative attended the Tribunal hearing by video conference.

10. At the commencement of the hearing, the representative was not available to join the hearing, having explained to Tribunal officers by telephone that he was caught in traffic. The first named and second named applicants consented to the hearing commencing in the absence of the representative. Mr Oladejo joined the hearing 13 minutes after it had commenced, before substantive issues relating to the application had been considered

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. 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.

14. 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 of the Regulations); 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Screen Printer approved, with the applicant as nominee, on 10 September 2017. The nomination application was refused on 11 May 2019 and the nominator sought review of that decision with the Tribunal on 27 May 2019.

16. On 20 September 2022, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

17. On 26 September 2022, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 20 September 2022, the Tribunal affirmed the decision not to grant an
    Employer Nomination lodged by Barry Scott Signs Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.187.233(1).

    If we rely on this information in making our decision, we may find that Mr Penuela
    Bernal does not meet cl.187.233(3), which requires the nomination be approved, and
    affirm the decision under review. We may subsequently find that Mrs Castillo Valencia, Miss Penuela Castillo and Miss Penuela Castillo do not meet the secondary visa criterion cl.187.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 187 visa, and affirm the decision under review in respect of their applications.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 10 October 2022.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. On 8 October 2022, the representative notified the Tribunal that the nominator was considering all of its legal options including a judicial review of the Tribunal’s decision to affirm the refusal of the nomination application. No comment on or response to the invitation of 26 September 2022 has been received by the Tribunal other than that notification from the representative.

19. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 17 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 4 October 2017 of the reasons for the visa application being refused. The Tribunal has also taken into account that the first named and second named applicants were advised at the hearing on 20 July 2022 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

20. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 26 September 2022 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 187.233 and cl 187.311 of Schedule 2 to the Regulations.

21. The Tribunal accepts that its decision to affirm the refusal of the nomination application was in no way attributable to any acts or omissions of the visa applicants. However, it is a requirement for approval of the visa application that the related nomination application has been approved.

22. The Tribunal notes that the application for nomination for the position of Screen Printer has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.233(3) is not met.

23. Therefore, cl 187.233 is not met in respect of the applicant.

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. In relation to the second named, third named and fourth named applicants, the Tribunal notes that cl 187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant be a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named, third named and fourth named applicants do not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.

    decision

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

    Terrence Baxter
    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.