Medina (Migration) [2019] AATA 3110 (8 May 2019)

Last Updated: 2 September 2019

Medina (Migration) [2019] AATA 3110 (8 May 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mrs Angelita Medina

CASE NUMBER: 1829139

HOME AFFAIRS REFERENCE(S): BCC2018/438243

MEMBER: R. Skaros

DATE: 8 May 2019

PLACE OF DECISION: Sydney

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

Statement made on 08 May 2019 at 12:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – nomination not approved – no pending review for refusal decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, 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 (the Act).
2. The applicant applied for the visa on 26 January 2018. 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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Disabilities Services Officer with Frangipani Gentle Care Group Homes Pty Ltd.
5. 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 of the position lodged by Frangipani Gentle Care Group Homes Pty Ltd in relation to the applicant was not approved.
6. The applicant provided a copy of the delegate’s decision record which indicated that the relevant nomination was refused by the Department on 23 August 2018.
7. On 11 February 2019 the Tribunal wrote to the applicant requesting information about whether there is an approved nomination or a pending application for review of the decision to refuse the nomination. The applicant wrote to the Tribunal requesting an extension of time to provide a response. The Tribunal wrote to the applicant on 21 February 2019 granting the extension of time and informing the applicant that her response should be received by 14 March 2019.
8. The applicant wrote to the Tribunal on 14 March 2019, requesting that the Tribunal consider the application for review in the absence of a nomination. The applicant submitted that she is suitable to apply for a new Regional Employer Nomination. The applicant stated that she worked for her sponsor from 26 March 20018 to 29 July 2018 and provided a letter of support from the nominating employer. The applicant also provided a signed contract with Miranda Aged care Facility, indicating that she works on a permanent part time basis in the position of Assistant in Nursing.
9. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.
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 relevant nomination has been approved.

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. In addition, this criterion also requires that the nomination has been approved.
13. The applicant applied for the visa on the basis of a nomination of a position made by Frangipani Gentle Care Group Homes Pty Ltd, which she identified in her visa application form as having transaction reference number EGOHSSJ8F (the associated nomination). The delegate’s decision record indicates that on 23 August 2018 the associated nomination was refused by the Department.
14. On 24 August 2018, the Department sent the applicant a natural justice letter inviting her to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and the delegate made a decision to refuse the grant of the visa.
15. On review, the applicant was requested to provide information about the status of the associated nomination, to which she requested the Tribunal consider the review in the absence of a nomination.
16. At the hearing, the Tribunal discussed with the applicant the requirements in cl.187.233(3) and explained that without the approval of the associated nomination she would be unable to meet that requirement. The applicant stated that she would like to remain in Australia to gain experience and find another sponsor and requested the Tribunal to extend her bridging visa so that she can achieve this.
17. The Tribunal explained to the applicant that the purpose of the review is to determine the issues in the review, which in her case is whether the associated nomination has been approved. The Tribunal explained to the applicant that a new nomination from another sponsor would not assist her in this review as only the nomination in place at the time of the visa application can be relied upon to meet the requirements in cl.187.233(3)^[1]. The Tribunal further noted that it could not extend her bridging visa to allow her to remain in Australia and gain work experience and find another sponsor. The Tribunal also noted given the associated nomination had been refused and no review of that decision had been made, meaning the review has no prospect of success, the Tribunal did not consider it appropriate to delay the making of its decision. For these reasons, the Tribunal has decided to proceed to a decision on the information before it.
18. The issue before the Tribunal is whether the associated nomination has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Frangipani Gentle Care Group Homes Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3). 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.

R. Skaros
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

(aa) in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.

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^[1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application.