Stacey (Migration)

[2018] AATA 1654

Stacey (Migration) [2018] AATA 1654 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Claire Louise Stacey
Master Callum John Charles Stacey
Miss Caitlin Jane Stacey

CASE NUMBER:  1805425

DIBP REFERENCE(S):  BCC2017/1642582

MEMBER:Denise Connolly

DATE:3 May 2018

PLACE OF DECISION:  Perth

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

Statement made on 03 May 2018 at 10:48pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Lead Educator (Child Care Worker ANZSCO 421111) – Sponsor’s nomination application refused – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 Schedule 2 cl 187.233

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 (the Act).

2. The applicants applied for the visas on 8 May 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 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.

3. In this case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Lead Educator (Child Care Worker ANZSCO 421111). 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.

4. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application lodged by G8 EDUCATION LIMITED, of which the applicant was the subject, was refused.

5. The applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. 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). 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).

8. 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.

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 17 January 2018 the nomination lodged by G8 EDUCATION LIMITED was refused. The delegate found that the applicant did not satisfy the requirements of cl.187.233.

10. At the hearing the Tribunal discussed with the applicant the requirement that the nomination lodged by the employer G8 EDUCATION LIMITED was refused which indicates she does not meet cl.187.233(3). The applicant explained the background to her visa application and the reasons why she believes the decision is unfair. The applicant was the holder of a Subclass 457 visa, as a member of the family unit of her husband who was granted the visa to work in Australia. Early in 2017 her husband quit his job and returned to the UK. He had her and their children’s Subclass 457 visas cancelled. The applicant wanted to remain in Australia with her children. Her employer started the permanent residence process. However the Department decided incorrectly that the applicant could not lodge the visa application onshore. Ultimately the Department accepted that it had been incorrect in not allowing her to make an onshore visa application and she lodged the application the subject of this review in May 2017. She has been informed that her nominated occupation was taken off a relevant list around March 2017 and so the nomination application was refused. She believes that if her visa application was not held up by the Department’s refusal to let her lodge the visa application she would have been processed before the change to the relevant list. She indicated that she needs to remain in Australia because her children are settled here, she is effective in her employment and there is nothing for her in her home country.

11. The Tribunal explained to the applicant that cl.187.233(3) requires that the nomination has been approved. It explained it has no discretion to make a favourable decision in circumstances whether the relevant nomination was refused. It explained that it is only the Minister who can make a favourable decision in circumstances where the requirements in cl.187.233 are not met.

12. The Tribunal has had regard to all of the evidence before it. It acknowledges that the applicant wishes to remain here, particularly given her children are settled here. However as it explained to the applicant the Tribunal must apply the relevant law, which in her case requires that the nomination lodged by G8 EDUCATION LIMITED has been approved. On the basis of information in the delegate’s decision record and the applicant’s evidence at the hearing, that nomination application was refused. Accordingly the applicant does not meet cl.187.233(3). Therefore, cl.187.233 is not met.

13. There is no evidence before the Tribunal to indicate that either of the secondary applicants meets cl.187.233.

14. 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

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

    Denise Connolly
    Member