Swanepoel-Trollip (Migration)

[2023] AATA 3146

Swanepoel-Trollip (Migration) [2023] AATA 3146 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lenard Barend Swanepoel-Trollip
Mr Christiaan Frederick Beyers Swanepoel-Trollip
Miss Tatiana Swanepoel-Trollip

REPRESENTATIVE:  Mr Jan Abraham Kotze

CASE NUMBER:  1930379

HOME AFFAIRS REFERENCE(S):          BCC2019/2508430

MEMBER:Penelope Hunter

DATE:28 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2023 at 3:59pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – computer and systems network engineer – subject of approved position nomination – refusal of related nomination application affirmed in separate review – no longer working for sponsoring employer – claim of unfair treatment and action in Fair Work Commission – adverse information not relevant to review – new visa application in progress – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3), (5)

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 13 May 2019. 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 Computer and Systems Network Engineer.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the related application by the applicant’s sponsoring employer, Stormlight Pty Ltd ATF the Hurst Family Trust had not been approved. The applicants have provided a copy of the decision record of the delegate to the Tribunal.

6. On 29 August 2023, the Tribunal wrote to the applicants and advised it was unable to make a favourable decision on the information before it and invited them to attend a hearing before it via teleconference to give evidence and present arguments, on 19 September 2023.

7. On 4 September 2023, the Tribunal again wrote to the applicants pursuant to the provisions of s 359A of the Act and invited them to comment or respond to information in anticipation of the hearing. The relevant information was that on 15 May 2023, upon review, the Tribunal had affirmed the decision to refuse the nomination application lodged by Stormlight Pty Ltd ATF the Hurst Unit Trust. The Tribunal explained the relevance of the information and informed them if it relied on the information it may find that the relevant nomination in relation to the applicant’s visa application had not been approved and they would not be able to meet one of the essential the requirements for the visas and consequently the decisions under review may be affirmed.

8. On 15 September 2023, the Tribunal received a request for hearing postponement as the applicants had changed representatives. The Tribunal refused the request to postpone the hearing noting that the review application had been on foot since October 2019, the related nomination was refused in May 2023, and the hearing notice had been validly issued. In the absence of further explanation, it was considered a matter within the control of the applicants that they had changed representatives a few days before the proposed hearing date.

9. The applicant only appeared before the Tribunal via telephone on 19 September 2023.

10. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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); 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.

13. The applicant has sought the visa on the basis of a nomination in the position of Systems Engineer (ANZSCO 263111) by his employer Stormlight Pty Ltd ATF the Hurst Family Trust. This nomination application was refused by the Department on 11 September 2019.

14. The Tribunal discussed with the applicant the contents of its s 359A letter. The applicant told the Tribunal that he was no longer working for his sponsoring employer. He claimed that this employer had held him to ransom for three to five years and then he was made redundant in the middle of the visa application process. He claimed that he was treated unfairly and the system promoted this abuse. He had taken action against his former employer in the Fair Work Commission and claimed to have been successful, however this did not resolve the issues with his visa application.

15. The applicant did not dispute that the nomination application lodged by Stormlight Pty Ltd had not been approved. He expressed disappointment in his former agent who had not kept him advised of proceedings and delayed handing over his files. He said that he was currently pursuing a new visa application with his new representatives.

16. Upon consideration of the information provided by the applicant that his former representative was not acting promptly in handing over his file. He claimed to have hoped the Tribunal could take further action in relation to his employer. The Tribunal advised the applicant if he wished he could take further advice on the matters arising at hearing and provide any additional information to the Tribunal by 26 September 2023. The applicant has provided no further documents or submissions as at the date of this decision.

17. The Tribunal therefore finds that on 15 May 2023, this Tribunal, differently constituted, affirmed the decision of the Department not to approve the nomination application of Stormlight Pty Ltd ATF the Hurst Family Trust. The applicant has provided any information to dispute this finding. The Tribunal consequently finds that the relevant nomination as identified in the applicant’s visa application has not been approved. It follows that the applicant does not satisfy cl 187.233(3).

18. While it is not necessary to make a further determination, on the evidence of the applicant, his employment with Stormlight Pty Ltd ceased some time ago as a consequence of this the Tribunal is not satisfied that the position is still available to him. In these circumstances the applicant would also not satisfy cl 187.233(5).

19. Therefore, cl 187.233 of Schedule 2 to the Regulations is not met as a whole and the applicant has not satisfied one of the primary criteria for the grant of the visa.

20. 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.

21. The second and third named applicants have applied for the visa as members of the family unit of the applicant who satisfies the primary visa criteria. As the Tribunal has found that the applicant does not satisfy one of the essential primary criteria, it follows that they cannot satisfy the secondary criteria and the decision to refuse their visas is also affirmed.

    Other matters - Non-Disclosure Certificate

22. Contained within the Department file in this matter was a non-disclosure certificate issued pursuant to s 376 of the Act and dated 4 March 2021. The Tribunal provided a copy of the certificate to the applicant, via his new representative prior to the hearing, and indicated it would invite submissions as to the validity of the certificate at the hearing.

23. At the hearing, the applicant and was invited to comment but did not offer any submissions disputing the validity of the certificate.

24. The Tribunal is satisfied that the certificate is valid. It is signed and dated by the relevant office. It clearly identifies the material to which it purports to apply and the grounds for the claim of confidentiality, this is because it may disclose, or enable a person to ascertain the existence of identity of, a confidential source of information.

25. Pursuant to the provisions of s 359AA of the Act the Tribunal also discussed with the applicant the substance of the information covered by the certificate which was a record of an anonymous on-line tip off to the Department that the applicant had been involved in the wrongful appropriation of funds while in South Africa, related to a real estate business. The applicant was further informed that if relied upon it may give rise to concern regard his character and whether he would otherwise meet the public interest requirements for the visa. The applicant was also advised that this information was not a matter that the Tribunal would have any regard as it was not relevant to the above findings in relation to the whether the applicant was the subject of an approved nomination. The applicant elected not to comment further, the Tribunal also granted the applicant until 26 September 2023 to discuss the information with his representative and provide any further submissions to the Tribunal if he wished. As at that date of this decision the applicant has not commented further on this matter. Furthermore, as the information did not form part of the reasons for affirming the decision under review, the Tribunal did not place any weight upon it.

    DECISION

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

    Penelope Hunter
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.