Wojtowicz (Migration)

[2020] AATA 1080

Wojtowicz (Migration) [2020] AATA 1080 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Grzegorz Rafal Wojtowicz
Miss Agnieszka Maria Kumorkiewicz

CASE NUMBER:  1724122

HOME AFFAIRS REFERENCE(S):          BCC2017/2269534

MEMBER:Karen McNamara

DATE:6 April 2020

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 6 April 2020 at 11:04am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Marketing Specialist – 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 Immigration and Border Protection (the delegate) 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 June 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, Mr Grzegorz Rafal Wojtowicz (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113) under the Regional Sponsored Migration 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 which required Mr Grzegorz Rafal Wojtowicz to be the subject of an approved nomination. The delegate found that the nomination lodged by Polish Cleaning Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 7 August 2017.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Miss Agnieszka Maria Kumorkiewicz could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 5 October 2017 for review of the delegate’s decision.

9. Mr Gregorz Wojtowicz, appeared on behalf of the applicants before the Tribunal on            16 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator and second named applicant, Ms Agnieszka Kumorkiewicz in the related matter for the nomination application (AAT Case file 1719533). The related matters were heard concurrently in a combined hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

12. 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.

13. 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.

14. The applicant attended the hearing on the 16 January 2020. It was a combined hearing regarding the nomination refusal. The Tribunal explained that, to meet cl.187.233, the applicant must be the subject of an approved nomination. It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal advised that it would write to the applicant advising of the decision.

15. On the 5 March 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Polish Cleaning Pty Ltd in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met.

16. On 9 March 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Polish Cleaning Pty Ltd, which the Tribunal explained was relevant to the applicants meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, cl.187.233(3) is not met.

17. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 23 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act.

18. On 21 March 2020, the applicants sought an extension to 13 April 2020, to provide comments to the Tribunal. The Tribunal subsequently informed the applicants on 23 March 2020 that an extension was granted to 27 March 2020.

19. On 27 March 2020 the applicants provided the following comments to the Tribunal by way of written submission;

    ‘My only comment at the moment is that cleaning services are probably one of the few industries in the entire economy that is really expanding due to the COVID-19 Outbreak. I have already signed up a few companies and increased Polish Cleaning’s revenue by $42 900 per annum. But on the other hand, all our customers in the hospitality industry has suspended their service until further notice.

    Nevertheless, I believe that Polish Cleaning Pty Ltd can double its revenue in 2020.’

20. The Tribunal acknowledges the applicants’ submission and the attempts the applicants have made to increase the nominator’s revenue however, there is no evidence before the Tribunal to support that the applicant is subject of an approved nomination application. Therefore, on the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved and as such the applicant does not meet cl 187.233(3). of Schedule 2 to the Regulations.

21. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

22. There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of the visa.

23. In relation to the second named applicant Miss Agnieszka Maria Kumorkiewicz, the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the secondary applicant, Miss Agnieszka Maria Kumorkiewicz as a member of Mr Grzegorz Rafal Wojtowicz’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.187.311 of Schedule 2 to the Regulations.

24. 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

25. 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

    (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.