Sot (Migration)

[2017] AATA 1846

Sot (Migration) [2017] AATA 1846 (29 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ron Sot

CASE NUMBER:  1616735

DIBP REFERENCE(S):  BCC2016/2323392

MEMBER:Christopher Smolicz

DATE:29 September 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 29 September 2017 at 9:37am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Nominated position of Religious Worker – Application lodged over 6 months after nomination approval – Requested particular information not supplied

LEGISLATION

Migration Act 1958, s 65, 349, 351, 359

Migration Regulation 1994, Schedule 2 cl187.233, r 5.19

CASES

Yang v MIAC [2010] FMCA 890

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The applicant provided the Tribunal with a copy of the delegate’s decision.

2. The applicant applied to the Department of Immigration for the visa on 11 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Religious Worker.

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 applicant was represented in relation to the review by his registered migration agent.

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 applicant satisfies cl.187.233(6).

   Background

9. The applicant is a citizen of Cambodia. He has described his occupation a Buddhist Monk. He arrived in Australia on 2 December 2012 as the holder of a Cultural/Social (Temporary) (Class TE) subclass 428 visa. The visa was valid until 16 November 2014.

10. On 3 December 2014 WAT Khmer Satipheap Association of SA Inc (the sponsoring employer) lodged a nomination seeking approval of the position of Religious Worker. Mr Sot was the nominee.

11. On 22 September 2015 the nomination lodged by the sponsoring employer was approved by the Department.

12. On 11 July 2016 the applicant lodged his visa application with the Department. The visa application was lodged more than 6 months after the nomination was approved by the Department.

13. On 28 September 2016 the delegate refused to grant the visa because the applicant did not meet cl.187.233(6) of Schedule 2 to the Regulations.

    Review

14. On 12 September 2017 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act and requested that he provided information to demonstrate that the visa application was made no more than six months after the nomination of the position was approved. The invitation advised the applicant that if the information was not provided in writing by 26 September 2017 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. On 26 September 2017 the applicant’s representative responded to the Tribunal’s letter.

16. The representative conceded that the applicant has not lodged the visa application six months after the nomination was approved.

17. The Tribunal acknowledges that the applicant has responded to the invitation within the prescribed period, however the Tribunal finds the applicant has not provide the particular information requested. The Tribunal notes that section 359(2) of the Act states that the applicant must provide ‘the’ specific information which has been requested. The effect is that the applicant has no entitlement to a hearing and the Tribunal has proceeded to make a decision on the available evidence.[1]

    [1]Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [42]-[43].

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

    Nomination of a position

19. 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.

20. In addition, this criterion also requires that the visa application was made no more than six months after the nomination of the position was approved: cl.187.233(6).

21. As detailed above the agent’s submissions provide an explanation as to why the applicant did not lodge with the visa application within the time frame. The Tribunal has noted the submissions but does not have any discretion in this matter.

22. The Tribunal finds that the visa application was lodged by the applicant on 11 July 2016 which is over 9 months after the nomination was approved on 22 September 2015. The Tribunal finds the applicant has not met the criteria in cl.187.233(6).

23. Therefore, cl.187.233 is not met.

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.

    Request for Ministerial Intervention

25. The agent stated that “we are aware that the Tribunal is not in a position to rule in favour of Mr Sot with a positive decision in accordance with s.349 of the Migration Act… we kindly request, in accordance with the principles of natural justice, that the Tribunal exercise its discretionary powers to seek Ministerial Intervention under s.351 of the Act.”

26. The Tribunal notes that, in the event of an unsuccessful review application, an applicant may request Ministerial intervention pursuant to s.351 of the Act. This section confers a non-compellable, personal discretion on the Minister for Immigration to intervene to grant the applicant a visa if the Minister believes it is in the public interest to do so; for instance, if the case has unique or exceptional circumstances. Non-exhaustive guidelines providing examples of unique or exceptional circumstances for Ministerial intervention can be found on the Department’s website. It remains open to the applicant to consider these and to make a request if he and his agent feel that his case presents facts that would justify Ministerial intervention.

    DECISION

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

    Christopher Smolicz
    Member