Pigot (Migration)

[2018] AATA 2637

Pigot (Migration) [2018] AATA 2637 (26 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Damien Pigot
Mrs Sandrine Mendy

CASE NUMBER:  1714535

DIBP REFERENCE(S):  BCC2016/1123439

MEMBER:Karen McNamara

DATE:26 July 2018

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 26 July 2018 at 11:03am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4), 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 Immigration and Border Protection 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 15 March 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 - Mr Damien Pigot (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of full time Café/Restaurant Manager. 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 because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because on the 15 May 2017, the nomination lodged by The Trustee for the Briezh Trust, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

6. As the nomination application has been refused, regulation 187.233(3) is not met.

7. The delegate found in regard to the dependant applicant, Miss Sandrine Mendy, as the applicant is not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, cl.187.311 is not satisfied by Miss Mendy.

8. The applicants applied to the Tribunal on 6 July 2017 for review of the delegate’s decision.

9. The applicants appeared before the Tribunal on 21 May 2018 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicants meet the requirements of cl.187.233.  

    Nomination of a position

12. 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), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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).

13. 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.

14. The applicants attended the hearing on the 21 May 2018. It was a combined hearing regarding the nomination refusal. The Tribunal explained that, to meet cl.187.233, the applicants must be the subject of an approved nomination.  It explained that the review of the nomination refusal must be finalised before the decision in this case could be made.  The Tribunal advised that it would write to the applicants advising of the decision.

15. On the 2 July 2018, the Tribunal affirmed the decision refusing the approval of the nomination made by The Trustee for the Breizh Trust in respect of the applicants.  As the nomination has been refused, regulation 187.233(3) is not met.

16. On 4July 2018, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants 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 information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by The Trustee for the Breizh Trust which the Tribunal explained was relevant to them meeting cl.187.233(3), which requires the nomination to be approved.  As the nomination has been refused, regulation 187.233(3) is not met.

17. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 18 July 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

18. The applicants did not respond in writing. The applicants have not provided any evidence to confirm that they are the subject of an approved nomination.

19. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl 187.233(3).

20. As the primary applicant is found not to have met the prescribed criteria for a Regional Sponsored Migration Scheme visa, the secondary applicant Miss Sandrine Mendy as a member of his family unit, therefore is also unable to satisfy the criteria for this visa class.

21. As such, the applicants do not meet an essential criterion for the grant of a subclass 187 visa.

22. The applicants have 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

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

    Karen McNamara
    Member