PETROCCO (Migration)

[2018] AATA 5755

PETROCCO (Migration) [2018] AATA 5755 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Selina Petrocco

CASE NUMBER:  1602166

HOME AFFAIRS REFERENCE(S):           BCC2015/1836245

MEMBER:Alison Mercer

DATE:11 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 11 December 2018 at 12:04pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Pastry Cook – nomination refused – Tribunal attempted to contact Applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 187.233

CASES
Hasan v MIBP [2016] FCCA 1049
Hasran v MIAC [2010] FCAFC 40
Kaur v MIBP [2017] FCCA 564
Khanom v MIBP [2016] FCCA 3259
Singh v MIBP [2017] FCAFC 105

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 Immigration and Border Protection on 1 February 2016 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 June 2015. 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 sought the visa in Direct Entry stream, to work in the nominated position of Pastry Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that, amongst other things, she was the subject of an approved nomination by her employer (cl.187.223(3)). The delegate noted that the nomination lodged by the applicant’s employer, Gothic Downs Pty Ltd, was refused on 21 December 2015.

6. The Tribunal received a review application from the applicant on 22 February 2016. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Mohit Nakra, as her representative and authorised recipient for correspondence.  Subsequently, the Tribunal wrote to the applicant to advise that her agent had had his registration suspended but that he remained her authorised recipient for correspondence until such time as she nominated another authorised recipient for correspondence.

7. The matter was constituted to a Tribunal Member on 5 September 2018.

8. On 9 November 2018, the Tribunal wrote to the applicant via her agent pursuant to s.­­A of the Act to invite her to comment on or respond to information it held that was potentially adverse to her case.

9. The Tribunal advised the applicant that her nominating employer, Gothic Downs Pty Ltd, lodged an application with the Tribunal on 11 January 2016, seeking review of the Department’s decision to refuse its nomination of her. The Tribunal further advised that on 8 November 2018, it made a decision to affirm the Department’s refusal to approve Gothic Downs Pty Ltd’s nomination of her, and accordingly, there was currently no approved nomination of her by that employer, and the decision to refuse the nomination was no longer under review by the Tribunal. The Tribunal explained that this information was relevant to the decision under review because, subject to her response or comments, it indicated that the applicant was not the subject of an approved appointment made by the same employer who originally nominated her, as required by cl.187.233. The Tribunal noted that this would be the reason (or part of the reason) to affirm the decision under review.

10. The Tribunal invited the applicant to provide comments or a response to this information by 23 November 2018. It further noted that she could ask for an extension of time to do so, if needed, but that if no comments, response or request for an extension of time were received by 23 November 2018, then the applicant would lose any entitlement to a hearing before the Tribunal, and the Tribunal might proceed to make its decision without taking any further steps to obtain her views about the information.

11. On 22 November 2018, the Tribunal received a response from a newly appointed migration agent and authorised recipient for correspondence for the agent, Mr David Harvey, who sought an extension of time to respond to the Tribunal’s s.359A letter. The Tribunal wrote in response granting an extension of time until 7 December 2018, and reiterating that if comments or a response were not received by this date, then the applicant would lose any entitlement to a hearing before the Tribunal, and the Tribunal might proceed to make its decision without taking any further steps to obtain her views about the information.  

12. The Tribunal did not receive a response or comments from the applicant or her agent by 7 December 2018, and has received no further communication to date. The Tribunal is satisfied that both its s.359A letter and the extension of time letter were sent to the relevant email addresses nominated for correspondence by the applicant’s agents at the relevant time, and there is no record that they were not received or were undeliverable Accordingly, the Tribunal finds that the applicant has lost her entitlement to have a hearing and the Tribunal may proceed to make its decision: ss.359C and 360(3).

13. The Tribunal has nevertheless considered whether to make allow further time for the applicant and/or her agent to respond or provide comments, but – in view of the lack of response and information provided to date, and the confined nature of the legal criterion in dispute – the Tribunal has elected not to do so and instead proceeds to make its decision on the available evidence.

14. 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

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.

16. 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.

17. As noted in the delegate’s decision and set out in the Tribunal’s s.359A letter, the applicant’s employer, Gothic Downs Pty Ltd, had its nomination of the applicant refused by the Department on 21 December 2015, and although it sought review of that decision with the Tribunal, the Tribunal affirmed the decision to refuse the nomination on 8 November 2018. There is no evidence before the Tribunal that that employer lodged another nomination.

18. It is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

19. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

20. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.  

21. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version.  While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

22. Accordingly, the Tribunal must find that cl.187.233(3) is not met, and therefore cl.187.233 is not met as a whole. This means that the applicant does not meet the criteria for a subclass 187 visa.

23. 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.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Alison Mercer
    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

    (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.