Walton (Migration)

[2019] AATA 4156

Walton (Migration) [2019] AATA 4156 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natalie Jane Walton

CASE NUMBER:  1618359

HOME AFFAIRS REFERENCE(S):           BCC2016/850490

MEMBER:Michelle East

DATE:6 September 2019

PLACE OF DECISION:  Perth

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

Statement made on 06 September 2019 at 1:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – no response to s 359A invitation – not entitled to appear before the Tribunal – Direct Entry stream – Secretary (General) – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 March 2016. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Secretary (General) (ANZSCO 521211).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the position to which the application relates had not been approved at the time of the delegate’s decision.

6. The applicant applied for review of the delegate’s decision on 3 November 2016 and with her application submitted a copy of the primary decision record.

7. By letter dated 22 August 2019, and in accordance with section 359A of the Act, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason or part of the reason, for affirming the decision under review.

8. The particulars of the information were:

   -On 22 August 2019, the Tribunal made a decision to affirm a decision to refuse a nomination in respect of Evolution Partners Pty Ltd.  Consequently, the decision made by the Department of Immigration on 13 September 2016, to refuse the nomination still stands.

   -This information is relevant to the review because in deciding whether Ms Walton satisfies the requirements of clause 187.233(3) of Schedule 2 of the Regulations, that clause requires that the Minister has approved the nomination (being the nomination referred to in paragraph 187.233(1).

   -If the Tribunal relies on this information in making its decision, it will make a finding that there is no approved nomination in which Ms Walton is the nominee for the purpose of cl.187.233.  This may lead the Tribunal to find that that criterion is not met.  This is an impediment to the visa being granted by the Department of Immigration for Ms Walton.

   -Subject to your comments or response, this would be the reason, or a part of the reason, for the Tribunal affirming the decision under review.

9. The invitation was sent to the authorised recipient of the applicant and advised that, if the comments on or response to information was not provided in writing by 5 September 2019, or if the request for extension of time to provide comments on or response to the information is not received by the Tribunal on or before 5 September 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. A review of the Tribunal’s records indicates no response was received from the applicant by 5 September 2019.

11. The applicant has lost her right to appear before the Tribunal to give evidence and present arguments relating to the review application: section 360(3) of the Act.

12. The Tribunal may now make a decision on the review without taking any further action to obtain information: subsection 359C(2) of the Act.  The Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information given that the Tribunal is satisfied the applicant has been given a reasonable opportunity to provide information and has not done so.

13. 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

14. 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.

15. 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.

16. Based on the evidence before it, the Tribunal finds that the nomination mentioned in subclause 187.233 lodged by Evolution Partners (WA) Pty Ltd on behalf of the applicant has not been approved at the time of the Tribunal’s decision.  As a result, the Tribunal finds that the applicant does not meet the requirements of clause 187.233 at the time of its decision.

17. 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

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

    Michelle East
    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

    (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.