T Jahyadi (Migration)

[2019] AATA 2276

T Jahyadi (Migration) [2019] AATA 2276 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Vivi Tjahyadi
Mr Joey Bautista
Ms Jacinda Claire Bautista
Mr Joseph Anderson Bautista

CASE NUMBER:  1906088

HOME AFFAIRS REFERENCE(S):           BCC2018/937514

MEMBER:Karen McNamara

DATE:6 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2019 at 11:53am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination was refused – did not attend hearing – no evidence before Tribunal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233, rr 1.13A, 1.13B

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 27 February 2018. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant Ms Vivi Tjahyadi (the applicant) is seeking the visa in Direct Entry stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on the 30 November 2018 the nomination lodged by Joshi Qld Pty Ltd trading as Infused Restaurant, was refused by a delegate of the Minister for Home Affairs.

6. The applicants applied to the Tribunal on 14 March 2019 for review of the delegate’s decision.

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 meets the requirements of cl.187.233.

   Nomination of a position

9. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

10. 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.

11. On 19 March 2019 the Tribunal wrote to the applicants (dispatched by email to the authorised recipient) acknowledging receipt of their application for review and requesting the applicant to advise the Tribunal of any updated contact details.

12. On 21 March 2019, Ms Vivi Tjahyadi contacted the Tribunal via telephone and requested a letter to provide to Medicare to renew her cover. The applicant advised the Tribunal that the email address on her file belonged to her Migration Agent who is currently uncontactable and requested the Medicare letter be provided to an alternate email. The Tribunal advised the applicant that although she stated that she has a Migration Agent the agent was not listed on Tribunal records nor had been appointed to act on her behalf. The Tribunal advised the applicant that she was required to compete a MR6 “Change of contact details form” and that if she wished to appoint her Migration Agent to act for her and receive correspondence on her behalf she was required to complete a MR5 ‘Appointment of Representative’ form which is available on the Tribunal website.

13. The Tribunal advised her that if she did not wish to update her contact details or appoint her Migration Agent as a representative and/or authorised recipient, the Tribunal would continue to send all correspondence to the email address currently on file. The applicant asked the Tribunal if she could obtain a Medicare letter urgently without having to provide her contact email address. The applicant was advised that she could attend the Tribunal in person to obtain the letter as well as obtaining the MR5 and MR6 forms. The applicant advised that she understood.  The Tribunal notes the applicant has not completed and submitted these forms to the Tribunal as of the date of this decision.

14. On 25 March 2019 the Tribunal wrote to the applicants (dispatched by email to the authorised recipient) advising that information before the Tribunal suggested that the nomination for the position identified in their visa application was not approved and that the decision to refuse the nomination, is not the subject of an application for review. The letter invited the applicants to provide evidence of an approved nomination or a pending application for review of a decision to refuse the nomination. The applicant was provided until 8 April 2019 to provide this information. The Tribunal notes the forwarding email address is the address listed on Tribunal records as being current.

15. The applicants have not provided a response within the prescribed period and no extension has been granted.

16. On 9 May 2019, the Tribunal wrote to the applicants (dispatched by email to the authorised recipient) advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 3 June 2019 at 10.00 am. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. No response to the hearing invitation was received.

17. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.  On both occasions the text messages were undelivered. The Tribunal notes the telephone number was the number noted on Tribunal records as current.

18. The review applicants did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal to indicate that the applicants contacted the Tribunal to advise that they would not be attending the scheduled hearing.

19. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

20. There is no evidence before the Tribunal to support that the applicants’ application is subject to a nomination that has been approved and has not subsequently been withdrawn.

21. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl 187.233(3).

22. Therefore, cl.187.233 is not met.

23. As the primary applicant, Ms. Vivi Tjahyadi  is found not to have met the prescribed criteria for a Regional Sponsored Migration Scheme visa, the secondary applicants Mr Joey Bautista, Ms Jacinda Claire Bautista and Mr Joseph Anderson Bautista as members of her family unit therefore are also unable to satisfy the criteria for this visa class.

24. As such, the applicants do not meet an essential criterion for the grant of a subclass 187 visa.

25. The applicants have 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

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

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.