SANTOSCOY PADILLA (Migration)

[2017] AATA 2118

SANTOSCOY PADILLA (Migration) [2017] AATA 2118 (20 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Armando SANTOSCOY PADILLA
Mrs Yumi KUBOTA
Miss Lena KUBOTA
Mr Leo KUBOTA

CASE NUMBER:  1608102

DIBP REFERENCE(S):  BCC2015/2969555

MEMBER:Christopher Smolicz

DATE:20 October 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 20 October 2017 at 3:20pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent)(Class RN) visa – Subclass 187(Regional Sponsored Migration Scheme) – No approved nomination – No response to Tribunal’s invitation to comment

LEGISLATION

Migration Act 1958, ss 65, 359C, 360(3)

Migration Regulations 1994, Schedule 2, cl 187.223,187.233(3),187.311, r 5.19(4)(d)(i), 5.19(4)(h)(ii)

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 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 to the Department of Immigration for the visas on 12 October 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate General Manager (ANZSCO 111211).

5. 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.

6. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the Minister did not approved the nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the nomination has been approved.

   Background

9. On 9 October 2015, the applicant’s sponsoring employer, Earthnote Australia Pty Limited (ENAUS) applied for approval for a nomination for the position of General Manager. Mr Armando Santoscoy Padilla is the nominee for the position. On 9 May 2016 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(d)(i) of the Regulations. In a separate decision, the Department refused Mr Santoscoy Padilla’s subclass 187 visa application because ENAUS’s nomination was not approved.

10. ENAUS and Mr Santosocy Padilla applied to the Tribunal to review the department’s decisions.

11. On 28 September 2017 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by the ENAUS for the position of Corporate General Manager (ANZSCO 111211).[1]

    [1] AAT Migration and Refugee Division Case No. 1607758

12. On 5 October 2017 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised him that the Tribunal had affirmed the decision of Department refusing approval of the nomination of an appointment made by ENAUS.

13. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, he cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

14. The applicant was advised that if he cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing him the visa. As a consequence the secondary visa applicants would also be unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.

15. The applicant was invited to provide a written response by 19 October 2017. The letter advised the applicant that if he did not comments or response within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

16. At time to making this decision the applicant has not responded to the letter.

17. As the applicant has not provided the information within the prescribed period, and no extension has been sought or granted, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The Tribunal has proceeded to decision without taking any further steps to obtain the information, as it is evident the information cannot be provided.

    Nomination of a position

18. 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.

19. 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.

20. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

21. As a consequence the Tribunal also finds that the secondary visa applicants are unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.

22. Therefore, cl.187.233 is not met.

23. 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

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

    Christopher Smolicz
    Member