Jozwiak (Migration) [2019] AATA 3018 (1 May 2019)

Last Updated: 2 September 2019

Jozwiak (Migration) [2019] AATA 3018 (1 May 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Grzegorz Slawomir Jozwiak
Mrs Sylwia Anna Jaworska-Jozwiak

CASE NUMBER: 1617858

HOME AFFAIRS REFERENCE(S): BCC2016/296536

MEMBER: Stavros Georgiadis

DATE: 1 May 2019

PLACE OF DECISION: Adelaide

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

Statement made on 1 May 2019 at 3:44pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – nominated position –Accountant (General) ANZSCO 221111 – no approved nomination – tribunal affirmed review decision of sponsoring business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311, rr 1.13A, 1.13B, 5.19(4)

CASES
VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280

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 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 20 January 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 first named visa applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Accountant (General) ANZSCO 221111.
5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations as there was no approved nomination in respect of the position.
6. The applicants appeared before the Tribunal on 29 April 2019 to give evidence and present arguments.
7. The applicants were represented in relation to the review by their registered migration agent.
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 the visa applicants meet the criteria for grant of the (Class RN) visas.

Nomination of a position

10. 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.
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. The Tribunal has examined the visa applications on the Department file and notes that the required declaration has been made in relation to the position nominated by the employer sponsor, being that of Accountant (General) ANZSCO 221111, to satisfy cl.187.233(1).
13. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant is the nominator in the application for approval, Taracoon Pty Ltd. Thus the applicant meets cl.187.233(2).
14. On 1 May 2019 the Tribunal decided to affirm the decision under review in respect of the nomination under r.5.19(4) in the related case-file number 1616339 for the reasons set out in the Decision Record of that date refusing the nomination.
15. In accordance with the procedure under s.359AA of the Act the Tribunal put to the applicant at the hearing that it wished to discuss information that, subject to the response, would be the reason or part of the reason, for affirming the decision to refuse the applicants the 187 visas. The Tribunal explained that the applicant would be asked to respond to this information and would be entitled to seek additional time to comment on, or to respond to, the information.
16. The Tribunal put to the applicant that in circumstances where the Tribunal affirmed the decision refusing approval of the nomination of the position to which the application relates, he and the secondary visa applicant would not be able to meet essential criteria to satisfy cl.187.233 for the visas. The Tribunal put to the applicant that this information is relevant to the review because without evidence of the approval of the relevant nomination for the position, the applicants could not satisfy the provisions of clause 187.233(3) of the Migration Regulations for the grant of the Class RN visas sought.
17. The applicant responded immediately and did not seek additional time to provide further comments in relation to the information. The applicant told the Tribunal that he was well qualified for the role of Accountant and that he had been working with Taracoon Pty Ltd on a part time basis since June 2015 and then full time from early January 2019. He provided details of his pay rate as a casual of $19 per hour base rate, and $23 per hour with a casual loading included (for 37.5 hour per week). The applicants confirmed to the Tribunal when asked, that they understand and accept that in circumstances where there is no approved nomination, it would not be open for their visa applications to be successful as an approved nomination for the position is one of the essential criteria (cl.187.233(3)).
18. As aforementioned, on 1 May 2019 the Tribunal affirmed the decision to refuse the nomination of the position by Taracoon Pty Ltd. The Tribunal has not returned the matter for any further evidence or submissions since the hearing of 29 April 2019 as in these circumstances, and in view of the authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the visas cannot be granted in the absence of an approved nomination. The Tribunal is satisfied that there is no practical injustice in not returning the matter back to the Tribunal following its decision refusing the nomination, and accepts the applicant’s submissions that accord with this point, made at the hearing.
19. Having considered the available evidence before it, the Tribunal is satisfied that the position of Accountant (General) ANZSCO 221111 is the subject of the relevant r.5.19 nomination application that seeks to meet the requirements of subparagraph 5.19(4)(h)(ii) relating to that position. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.187.233(3) for the Direct Entry stream. The Tribunal finds that the nomination of the position to which the application relates is not approved.
20. Therefore, cl.187.233 is not met.
21. 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 in respect of all applicants, including the visa applicant’s spouse, Mrs Sylwia Anna Jaworska-Jozwiak, as a member of the same family unit.
22. The Tribunal finds that the remaining visa applicant named in the application (the applicant’s spouse) is not a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and therefore, does not satisfy cl.187.311.

DECISION

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

Stavros Georgiadis
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.