RAMOS DE CARVALHO (Migration)

[2019] AATA 1956

RAMOS DE CARVALHO (Migration) [2019] AATA 1956 (22 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fernando Luiz RAMOS DE CARVALHO

CASE NUMBER:  1810191

HOME AFFAIRS REFERENCE(S):           BCC2016/3906993

MEMBER:Alan McMurran

DATE:22 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2019 at 12:13pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent)(Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – application by nominator withdrawn – did not appear – no further or additional information to rely on – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233, rr 1.13A, 1.13B

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 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 21 November 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 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 Direct Entry stream, to work in the nominated position of program or project administrator.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant’s nomination by the employer, Zapala People Pty Ltd (Zapala), was withdrawn, leaving the applicant without an approved nomination..

6. The Tribunal had sent the applicant an invitation to appear and provide information on 24 January 2019, to which the applicant did not respond. The applicant did not appear before the Tribunal on 22 February 2019 to give evidence and present arguments, when the application was listed in a multi-application hearing list on that day.

7. On 13 February 2019, the Tribunal had received notification of a change of contact details from the applicant, providing a new residential address.

8. The applicant was not represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the subject of a nomination as approved by the Minister, and which nomination has not subsequently been withdrawn.

    Nomination of a position

11. 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.

12. 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.

13. For the purpose of this review, the Tribunal has had access to the Tribunal’s file and the Department’s electronic case file[1].

    [1] BCC20163906993

14. The Tribunal has noted that other than for the application lodged by the applicant on 11 April 2018, it has received no further or other information from or on behalf of the applicant. The Tribunal has before it no additional information or other information than was before the Department, when the primary decision was made in respect of this application not to approve the visa.

15. The Tribunal further notes that at the time of the decision on 23 March 2018 by the delegate, the nomination by the applicant sponsor, Zapala, had been withdrawn. The Department sent a natural justice letter to the applicant on 13 February 2018, advising him that the application by the nominator had been withdrawn. The applicant did not respond and the Department formulated a decision which was sent to the applicant on 23 March 2018.

16. Since notice of the decision was sent to the applicant, there has been no further communication from him, other than the notice of change of address referred to above and received by the Tribunal on 13 February 2019. Prior to that, the last recorded conversation on the Department’s file was on 12 September 2017, concerning the applicant’s then current address.

17. A check of the Department’s file shows that from lodgement of the nomination application and this visa application, there have been several telephone interviews with the applicant concerning his bridging visa and work rights.

18. As there has been no other communication from the applicant since the time he lodged his application, the Tribunal has no further or additional information upon which the Tribunal might rely, and the applicant has not taken up the opportunity to appear at hearing and provide any further information or make submissions to the Tribunal, notwithstanding the Tribunal’s invitation to do so.

    Findings

19. The Tribunal finds that the applicant has applied for a visa in the Direct Entry stream for a Subclass 187 regional sponsored migration scheme visa.

20. The applicant is required to meet the criteria in the regulation 187.23, which includes subregulation 187.233(3). This subregulation requires that the applicant is the subject of a nomination which the Minister has approved.

21. The Tribunal is satisfied according to the Department records that the nomination by the sponsor was withdrawn, and following which the Department then refused the nomination.

22. There is no indication that the Department’s refusal of the nomination is the subject of any review and the Tribunal is satisfied that there is no outstanding application or review which has been sought for a nomination of the applicant which relates to this Subclass 187 visa application.

23. As a result, the Tribunal finds that the Minister has not approved the nomination in support of the applicant, and the applicant does not satisfy the subregulation 187.233.

24. Therefore, cl.187.233 is not met.

25. 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

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

    Alan McMurran
    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.