Wijesinghege (Migration)

[2022] AATA 1965

Wijesinghege (Migration) [2022] AATA 1965 (13 May 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Sarasi Mihirine Wijesinghe Wijesinghege

REPRESENTATIVE:  Mr Dinesh Weerakkody (MARN: 0742843)

CASE NUMBER:  1825596

HOME AFFAIRS REFERENCE(S):           BCC2017/1717279

MEMBER:  Sean Baker

DATE:  13 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 13 May 2022 at 10:29am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office 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).

1. The applicant applied for the visa on 14 May 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager (ANZSCO 512111).

1. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination to which the position related had not been approved.

1. The applicant appeared before the Tribunal on 2 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the representative of the nominator, Mr Meade.

1. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the nomination has been approved.

Nomination of a position

1. 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.

1. 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 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.

1. I found that there was no jurisdiction in relation to the application made by the claimed nominator for this case (Tribunal case file 1819777) on 28 April 2022.

1. At the earlier hearing I spoke with the applicant about the implications for her case if I found there was no jurisdiction in relation to the nomination, and she indicated she understood.

1. A letter was also sent to the applicant setting out the fact that I had decided I did not have jurisdiction in relation to the nomination and seeking the applicant’s comment or response to that.

1. The applicant’s representative responded, acknowledging the lack of an approved nomination in support of the applicant’s application and that they understood the decision under review would be affirmed on that basis.

1. The nomination in relation to this visa application has not been approved. Therefore, the applicant cannot satisfy cl. 187.233(3).

1. Therefore, cl 187.233 is not met.

1. 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

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

Sean Baker 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.