Sacramento (Migration)

[2019] AATA 2803

Sacramento (Migration) [2019] AATA 2803 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Roman Bien Sacramento
Mrs Rubirosa Sacramento
Mr Jefferson Sacramento
Miss Justine Sacramento

CASE NUMBER:  1707054

HOME AFFAIRS REFERENCE(S):           BCC2016/2085821

MEMBER:Stavros Georgiadis

DATE:28 February 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 28 February 2019 at 4:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Motor Mechanic (General) ANZSCO 321211 – nomination not approved – nominating employer’s refusal decision affirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 187.311(a), 187.223, rr 1.13A, 1.13B, 5.19(3), 5.19(7)

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 17 June 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 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 Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic (General) ANZSCO 321211.

5. On 16 March 2017 the delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations as the position to which the nomination application relates, had not been approved and therefore, did not satisfy an essential criterion (cl.187.223(2)). In respect of the other named (secondary) visa applicants, the delegate considered they also were not able to satisfy the criteria for the grant of the visas as they are not members of the same 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(a)].

6. The applicants appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Angus Rankine, Group HR Manager of Emanuele Bros Pty Ltd who is the sponsoring employer regarding the related matter 1703754. The related matters were heard together in a combined hearing.

7. The applicants were represented in relation to the review by their registered migration agent.

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 the visa applicants meet the criteria for grant of the Regional Employer Nomination (Permanent) (Class RN) visas.

   Nomination of a position

10. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19(7)) here, the whole of the State of South Australia.

    ·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. The Tribunal has examined the visa application on the Department file and notes that the required declaration has been made.  The Tribunal finds that the position to which the application relates is that of Motor Mechanic (General) ANZSCO 321211 being the same as that nominated by the employer sponsor under the requirements of subparagraph 5.19(3), and in relation to the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1.  The Tribunal is satisfied therefore, that the applicant meets cl.187.223(1).

13. At the hearing of this matter the nominating employer’s submissions and oral evidence, which the Tribunal accepts, is that the nomination has not since been withdrawn and that the position is still available to the nominee.  The Tribunal accepts that the applicant meets cl.187.223(3) and cl.187.223(5) respectively.

14. The Tribunal is satisfied on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Emanuele Bros Pty Ltd, located in regional Australia (in Port Augusta, South Australia) as defined (here being the whole of the State of South Australia). The applicant therefore, meets cl.187.223(4).

15. The documents available to the Tribunal contain no relevant adverse information about Emanuele Bros Pty Ltd or others ‘associated with’ that person. The Tribunal accepts there is no apparent ‘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.

16. On 28 February 2019 the Tribunal affirmed the decision under review in the related matter casefile 1703754 as the Tribunal was not satisfied that the nominating employer could meet the requirements of r.5.19(3). In accordance with the procedure under s.359AA of the Act, the Tribunal considered that without an approved nomination, the applicants would not be able to meet necessary criteria to satisfy cl.187.223 (specifically cl.187.223(2)) for the grant of the visas and that the application would, on that basis, be unsuccessful in respect of all applicants. This was put to the applicant at the hearing who responded (without requesting additional time) that without an approved nomination, the visa applicants could not satisfy the requirements for the grant of the visas.

17. The Tribunal is satisfied from the oral evidence provided that the visa applicants acknowledge and accept, that in circumstances where there is no nomination approved, it would not be open for the visa applications to be successful as approval of the nomination is one of the requirements for the grant of the visas. 

18. There is no evidence before the Tribunal of any approved nomination that seeks to meet the requirements of r.5.19(3). Therefore, the applicant does not meet cl.187.223(2).

19. The application for the visas was made on 17 June 2016.  As the nomination application was refused on 28 February 2019 the applicant is not able to meet cl.187.223(6) of the Regulations.

20. Therefore, cl.187.223 is not met.

21. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed. 

22. The remaining visa applicants have made a combined application with the primary applicant. The Tribunal finds that they are also not able to satisfy the criteria for the grant of the visas as they are not members of the same 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(a)]. 

23. Accordingly, the remaining (secondary) visa applicants are not able to satisfy cl.187.311 for the Subclass 187 visas.

    DECISION

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

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position to which the application relates is located in regional Australia.

    (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.