Tan (Migration)

[2022] AATA 2035

Tan (Migration) [2022] AATA 2035 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maristela Ethel Ong Tan

REPRESENTATIVE:  Mr Wassef (Joe) Botros (MARN: 1280764)

CASE NUMBER:  1908982

HOME AFFAIRS REFERENCE(S):          BCC2018/397082

MEMBER:Wan Shum

DATE:23 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 23 June 2022 at 3:20pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 January 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 (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 applicant was seeking the visa in the Direct Entry stream to work in the nominated position of Restaurant Manager, with the details of the nomination purportedly made by Denny's Kitchen (ABN 94591606573) as the nominator.

5. However, during processing of the application, it appeared that the nomination was not lodged by the nominator who advised that they had no intention to employ the applicant in the position.

6. The delegate refused to grant the visa because the applicant did not meet cl 187.233(5) of Schedule 2 to the Regulations because the position of Restaurant Manager is not genuine and was not available.

7. The applicant sought review of that decision and was represented in relation to the review.

8. The applicant gave evidence to the Tribunal on 22 June 2022 by phone. The representative was available to assist during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. It appears that the applicant had applied for the Subclass 187 visa through a company whom she engaged to lodge a RSMS and Subclass 187 visa application.

11. The delegate initially wrote to the applicant following a telephone interview on 29 October 2018 with the Human Resources Coordinator of the nominating business. During the call they advised that they were unaware the business had nominated the applicant for permanent residency, and that they did not authorise the lodgement of an Employer Sponsored Nomination in respect of her. This was then confirmed in writing to the Department on 29 October 2018.

12. The delegate invited the applicant to comment on or respond to the information, explaining that it was relevant to whether she satisfied Public Interest Criterion 4020. In this letter, the delegate states that she had drawn a preliminary finding that the nomination corresponding to her application for Denny's Kitchen (ABN 94591606573), listing the applicant as the nominee for the position of a Restaurant Manager is not genuine as the nominator did not lodge the application and had no intention to employ her in the position.

13. In response, the applicant’s current representative who she engaged to assist her in this matter made submissions explaining that there were emails and other evidence strongly suggesting that the applicant was a victim of a fraudulent company operating in Melbourne. It was submitted that the applicant paid that company the sum of $25,000 to act on her behalf in her proposed RSMS nomination and associated visa application. The applicant claims that the company vanished after forwarding her confirmation that a Bridging Visa had been granted and did not respond to any telephone calls or emails or any other form of communication.

14. Having regard to the evidence, the delegate did not proceed to a finding on PIC 4020 but concluded that the position is not still available to the applicant as required by cl 187.233(5). At that time, the application for the nomination had not yet been decided. Ultimately, a decision was made not to approve the nomination. The visa the subject of this review is associated with that nomination and the requirements of cl 187.233 cannot be met in connection with any other nomination.

15. The Tribunal has proceeded to determine this matter on the same criterion, cl 187.233, noting that the applicant does not dispute that there was never a position with Dennys Kitchen or EMC Group. The letter she provided to the Department from the Human Resources area of EMC Group dated 5 November 2018 in response to the natural justice letter relevantly states “that at no stage were either Dennys Kitchen or the EMC Group contacted by Cambridge Consulting group to discuss or arrange a sponsorship for [the applicant]. The contract that was received by [the applicant] was fraudulent and was not witnessed or signed by a representative of our company.”

16. In these circumstances, the Tribunal finds that the requirements of cl 187.233 were not met as the nomination was not approved and the position is not still, and never was, available. The applicant said she has been nominated by her current employer and has apparently applied for a Subclass 494 visa which has not yet been decided.

17. For the application the subject of this review, the applicant had 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 stream. 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

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

    Wan Shum
    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.