Restrepo Florez (Migration)

[2021] AATA 5334

Restrepo Florez (Migration) [2021] AATA 5334 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Natalia Andrea Restrepo Florez
Mr Ivan Rafael Lemos Pineda

CASE NUMBER:  1831905

HOME AFFAIRS REFERENCE(S):          BCC2016/2250370

MEMBER:Terrence Baxter

DATE:10 December 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 10 December 2021 at 2:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – no response to s 359A invitation – request for ministerial intervention declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359C, 360, 363A

Migration Regulations 1994 (Cth), Schedule 2, cls. 187.233, 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 July 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 (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 Office Manager for In Action Services Group Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 26 October 2018 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 10 October 2018 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 187 visa, as he did not meet the secondary visa criterion (cl 187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 30 October 2018.

8. The first named applicant appeared before the Tribunal on 14 September 2021 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.

9. 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 applicant. 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.

10. The applicants were represented in relation to the review by their legal practitioner Ms Elizabeth Collins Fischer of Fischer Migration Lawyers. The representative attended the Tribunal hearing by video conference.

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 Office Manager approved, with the applicant as nominee, on 1 July 2016. The nomination application was refused on 10 October 2018 and the nominator sought review of that decision with the Tribunal on 26 October 2018.

16. On 22 November 2021, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

17. On 25 November 2021, 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 22 November 2021, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by In Action Services Group 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 Mrs Restrepo Florez does not meet cl.187.233(3), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mr Lemos Pineda does 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 his application.

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

    Your comments or response should be received by 9 December 2021.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. The applicants failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has been received by the Tribunal.

19. Where an applicant is invited to comment on or respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(2) of the Act.

20. 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 26 October 2018 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 25 November 2021 were set out in that correspondence. The Tribunal has also taken into account that the first named applicant was advised at the hearing on 14 September 2021 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.

21. 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 25 November 2021 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.

22. The Tribunal notes that the application for nomination for the position of Office Manager 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 relation to 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 applicant, 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 applicant does not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.

    Request to the Tribunal for referral for Ministerial intervention

26. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

27. At the hearing, the representative made a request for referral for Ministerial intervention in the event that the Tribunal affirmed the refusal of the nomination application. She made that request on the basis of the applicant’s substantial contribution to her local multicultural community.

28. In deciding whether to refer this matter to the Minister for consideration under s 351 of the Act, the Tribunal has considered the Minister’s guidelines on ministerial powers (the Minister’s Guidelines) contained in the Department’s Procedures Advice Manual (PAM3). The Minister’s Guidelines state that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of the intervention powers.

29. Examples of the unique or exceptional circumstances listed in the Minister’s Guidelines include:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

    ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

30. Having regard to all of the evidence, the Tribunal is not satisfied that the circumstances of this matter qualify as unique or exceptional, justifying a referral to the Minister. The Tribunal has decided not to refer the matter for possible Ministerial intervention under s 351 of the Act. The Tribunal notes that it is open to the applicant to make a direct request for Ministerial intervention. The Tribunal notified the applicant accordingly at the hearing.

    DECISION

31. The Tribunal affirms the decisions 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

    (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.