Woolley (Migration)

[2021] AATA 2267

Woolley (Migration) [2021] AATA 2267 (15 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Simon John Woolley
Mrs Laken Chapman
Ms Macey Woolley

CASE NUMBER:  1810018

HOME AFFAIRS REFERENCE(S):          BCC2017/2339237

MEMBER:Amanda Mendes Da Costa

DATE:15 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 15 June 2021 at 11.15am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Floor Finisher – no approved nomination – written advice from a Regional Certifying Body – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19

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 (Cth) (the Act).

2. The applicants applied for the visas on 30 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 (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Floor Finisher.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the first named applicant was not the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 14 January 2021 and 9 June 2021 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by video (first hearing) and telephone (second hearing). The hearings were held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold hearings by video and telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in video and telephone hearings, that the technology for facilitating the hearings was successfully trialled with the applicant prior to the hearing and that the applicants reside in Perth and would otherwise be required to travel to  Melbourne for the hearings.

8. 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.

9. The Tribunal has considered the information contained in both the Departmental and Tribunal’s files.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the first named applicant (Simon Woolley) 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 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.

    Simon Woolley’s oral evidence

14. The Tribunal discussed with Mr Woolley evidence before it which indicated that the application for approval of the nominated position made by Woolley’s Flooring Pty Ltd which was refused by a delegate of the Minister of Home Affairs.  The nominator sought review of that decision with the Tribunal, but the application for review was affirmed by the Tribunal on 17 November 2020.  The Tribunal notes that the review application by the nominator was affirmed on the basis that the nominator did not meet the requirements of Regulation 5.19(4)(h) as it had not provided written advice from a Regional Certifying Body (RCB).

15. Mr Woolley (who is also the sole director of the nominator) explained that he had instructed the nominator’s previous migration agent (who also acted for the applicants in relation to their visa applications) to obtain a written advice from an RCB.  Although this agent had informed him that he has obtained the advice and submitted it to the Department, Mr Woolley subsequently discovered that his agent had failed to obtain or submit such advice to the Department on behalf of the nominator.  When Mr Woolley was notified of the delegate’s decision not to approve the nomination application by Woolley’s Flooring Pty Ltd, he sought to question his former agent about the matter  Unfortunately the agent had disappeared, and Mr Woolley has been unable to locate him.

16. Mr Woolley told the Tribunal that he and his family have been living in Perth for the past eight years.  Mr Woolley has been operating a successful flooring business and his partner is employed in the disability care sector.  The couple have a school aged daughter who is settled in school and with friendship groups.  Mr Woolley said that it would be very unsettling for the family to return to the United Kingdom if their visa applications were not granted and he and his partner would experience difficulty in obtaining employment there.  He further explained that the Covid-19 pandemic would cause the family additional difficulties in relocating to the United Kingdom.

    Findings

17. The Tribunal accepts  Mr Woolley’s evidence regarding the actions of his previous migration agent and the effects on him and his family if the visa applications are not granted.  However, it finds that the position to which Mr Woolley’s visa application relates is not the subject of an approved nomination by his prospective employer Woolley’s Flooring Pty Ltd or any other nominator. 

18. Therefore, cl 187.233 is not met.

19. Given that the first named applicant (Simon Woolley) does not satisfy the primary criteria for the grant of a Regional Employer Nomination (Permanent) (Class RN) visa, the second and third named applicants do not satisfy the criteria for the grant of a Subclass 187 visa as members of the family unit of a person who has satisfied the primary criteria.

20. The first named 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

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

    Amanda Mendes Da Costa
    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.