ZITO (Migration)

[2018] AATA 2714

ZITO (Migration) [2018] AATA 2714 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Serena ZITO

CASE NUMBER:  1805106

DIBP REFERENCE(S):  BCC2017/1773913

MEMBER:Mary Sheargold

DATE:21 June 2018

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 21 June 2018 at 11:20am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Approval of nomination – Terminated employment without notice – Nomination withdrawn – Change of employer – No approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958

(Cth), s 65

Migration Regulations 1994 (Cth), r 5.19, Schedule 2 187.233

CASES
Singh v MIBP [2017] FCAFC 105

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 (the Act).

2. The applicant applied for the visa on 18 May 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Child Care Worker. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. On 9 February 2018, the delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.

6. On 26 February 2018, the Tribunal received a review application from the applicant.  On 2 March 2018, the applicant provided the Tribunal with a copy of the Departmental decision record in relation to her application.

7. The applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

11. 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.

12. At the hearing, the applicant gave evidence that she had commenced working with Embracing Children Karratha Pty Ltd after completing her studies.  She stated that initially, everything went well in her employment.  The applicant stated that despite the good start, as time passed, she noticed a number of breaches of required standards of care.  The applicant told the Tribunal that she was the second-in-charge at the centre and did not want to put herself at risk of breaching any laws or regulations regarding the care and facilities at the centre, so she began to raise her concerns with the management team.  The applicant stated that the owner of the business lived in Queensland and that she never met the applicant face to face.

13. The applicant told the Tribunal that when she returned to work after the Christmas break, on 3 January 2018, her employment was terminated without notice and without a reason.  The applicant told the Tribunal that after liaising with the Fair Work Commission, she was told there was no jurisdiction for her to make a claim for unfair dismissal.  The applicant told the Tribunal that she broke her lease in Karratha, left her car behind, and reutrned to Victoria where she had friends and family to support her.  She told the Tribunal that she has found employment in a childcare centre in Geelong, and that the company she now works for is willing to sponsor her for a permanent visa.

14. However, the applicant also told the Tribunal that due to the changes to the laws that came into effect in March 2018, she is now required to have three years of post-study work experience in order to apply for the relevant visa, and that she only has 29 months of experience.  At the hearing, the applicant was advised that while the Tribunal appreciated the difficult circumstances she faced, the Tribunal did not have the discretion to substitute a nomination from her new employer in relation to this visa application.  The applicant acknowledged that she understood this.

15. On 11 January 2018, Embracing Children Karratha Pty Ltd’s nomination application was withdrawn. The Tribunal finds that the applicant cannot satisfy cl.187.233 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination.

16. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

17. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.187.233 in relation to her application.  The nomination by Embracing Children Karratha Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

18. Therefore, cl.187.233 is not met.

19. 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

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

    Mary Sheargold
    Member