Vince (Migration)

[2020] AATA 3067

Vince (Migration) [2020] AATA 3067 (22 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Byron Barry James Vince

CASE NUMBER:  1815598

HOME AFFAIRS REFERENCE(S):          BCC2017/3924466

MEMBER:De-Anne Kelly

DATE:22 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 22 July 2020 at 1:16pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related nomination application refused – refusal affirmed on review – adverse information known to department – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 187.233(3)

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 24 October 2017. 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 (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of sports coach.

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 on 19 March 2018 a delegate if the Minister refused the employer nomination by The Queensland Academy Pty Ltd being the application referred to in cl.187.233(1).

6. The applicants appeared before the Tribunal on 24 June 2020 to give evidence and present arguments. They were self -represented.

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 applicants meet cl.187.233(3) of the Regulations which provide as follows;

   (3)      The Minister has approved the nomination.

   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. After the delegate of the Minister refused the employer nomination, the nominator lodged a review application with the Tribunal. The Tribunal on the 4 March 2020 affirmed the decision under review to refuse the nomination by The Queensland Academy Pty Ltd. In it’s decision the Tribunal noted the following;

    The information before the Tribunal, as set out in the decision record, indicates that there is
    adverse information known to Immigration about a person associated with the nominator,
    namely Mr Vince. In the absence of current information, the Tribunal is unable to be satisfied
    that, at the time of its decision, there is no adverse information within the meaning of
    regulation1.13A, that is known to the Department about the nominator or a person
    'associated with' the nominator.

12. The Tribunal invited the applicants to a hearing on the 24 June 2020 as it considered this case suitable for a telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

13. The Tribunal explained under s359AA of the Migration Act that the applicant did not have an approved employer nomination for the reasons above. The Tribunal gave the applicant three options to respond to this concern; the hearing could be adjourned; a written response could be made in 14 days or the applicant could respond in the hearing, but this would not prevent him making a written submission in 14 days.

14. The applicant said that there was not much point in the hearing if the decision was inevitable. The applicant did not request an adjournment or extension of time. The applicant was offered a further 14 days to make written submissions. There has been no further communication from the applicant.

15. Originally there were three secondary applicants included in the review namely Mrs Karen Grace Vince, Master Kayden Samuel Vince and Miss Alexia Maria Vince, who applied as the spouse and children and therefore as members of the family unit of the primary applicant. However, following a written request from Mrs Karen Grace Vince to withdraw their review applications, the Tribunal on 22 July 2020 accepted the applicant’s withdrawal and found that the Tribunal no longer has jurisdiction in their matter.

16. The Tribunal finds there is no approved employer nomination to satisfy cl.187.233(3).

17. Therefore, cl.187.233 is not met.

18. 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

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

    De-Anne Kelly
    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.