Rees-Davies (Migration)

[2018] AATA 1534

Rees-Davies (Migration) [2018] AATA 1534 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tariq Myles Jonathon Rees-Davies
Miss Laura Henry

CASE NUMBER:  1609323

DIBP REFERENCE(S):  BCC2015/2621341

MEMBER:Karen McNamara

DATE:10 April 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 10 April 2018 at 9:04am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry – 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, 359C, 360(3)
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cls 187.233(3), 187.311

CASES
Hasran v MIAC [2010] FCAFC 40

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 Mr Tariq Rees-Davies and Miss Laura Henry( the applicants) a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 September 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 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 Tariq Rees-Davies (the primary applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of full –time Safety Inspector. 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 visa because the applicant did not meet cl.187. 233 of Schedule 2 to the Regulations because on 6 May 2016, the nomination lodged by the Trustee for Gracie Family Discretionary Trust, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

   As the appointment has been refused, regulation 187.233(3) is not met.

6. The delegate found in regard to the dependant applicant (Miss Laura Henry), 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 Henry.

7. The applicants applied to the Tribunal on 23 June 2016 for review of the delegate’s decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants satisfy cl.187.223 and cl.187.311, specifically cl.187.223(3).

   Nomination of a position

10. 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).

11. 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.

12. On 19^th March 2018 the Tribunal affirmed the decision refusing the approval of the nomination made by the Trustee for Gracie Family Discretionary Trust in respect of the applicant.

13. On 21 March 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 Gracie Family Discretionary 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.

14. 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 4 April 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 to appear before the Tribunal to give evidence and present arguments.

15. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

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

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

19. 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

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

    Karen McNamara
    Member