Quintero Rondon (Migration)

[2020] AATA 3878

Quintero Rondon (Migration) [2020] AATA 3878 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gustavo Alejandro Padilla Ibarra

CASE NUMBER:  1924469

HOME AFFAIRS REFERENCE(S):          BCC2018/990481

MEMBER:Jade Murphy

DATE:13 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 13 July 2020 at 4:42pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Office Manager – no approved nomination – member of the family unit – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.13; Schedule 2, cls 187.233, 187.311

CASES

Singh v MIBP [2017] FCAFC 67

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 (the Act).

2. The applicants applied for the visas on 1 March 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 primary visa applicant sought the visa in the Direct Entry stream, to work in the nominated position of Office Manager (ANZSCO 512111).

5. The delegate refused to grant the visas because the primary visa applicant did not meet cl.187.233 of Schedule 2 to the Regulations as the associated employer nomination had been refused by a delegate of the Minister.

6. All references to ‘the applicant’ below are to the applicant to which this decision relates, namely Mr Gustavo Alejandro Padilla Ibarra, the secondary visa applicant.

7. On 22 June 2020 the Tribunal made a decision that it had no jurisdiction to determine the application of the primary visa applicant, Mrs Quintero Rondon.

8. On 23 June 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

9. The particulars of the information were that the Tribunal had made a decision that it had no jurisdiction to determine the application of Mrs Quintero Rondon, the primary visa applicant.

10. It was explained in the letter to the applicant that this information is relevant to his review because it is a requirement for the grant of the visa as a secondary applicant that the secondary applicant is a member of a family unit of a person who holds a visa that was granted on the basis of satisfying the primary criteria.  

11. The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 7 July 2020, or he would lose any entitlement he might otherwise have under the Act to appear before the Tribunal.

12. However, the applicant did not provide any comments or response within the prescribed period. Nor did the applicant, or his representative, request an extension of time within the prescribed period in which to do so.

    The Applicant's Loss of the Right to a Hearing

13. The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the applicants’ representative, Mr Trent Robert Pickup, which was the last address for service provided by the applicant in connection with the application for review.

14. However, as noted above, the applicant failed to provide his comments/response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) applies to the applicant and he is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

15. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.

16. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant is a member of a family unit of a person who holds a visa that was granted based on satisfying the primary criteria, as required by cl.187.311. 

19. On 1 March 2018, the primary visa applicant lodged an application for a Regional Employer Nomination (Permanent) visa. This application was combined with that of the applicant.

20. On 12 August 2019, a delegate of the department refused the applications of the primary and secondary visa applicant.

21. The primary and secondary visa applicant lodged an application for review of the delegate’s decision on 2 September 2019.

22. On 22 June 2020 the Tribunal made a decision that it had no jurisdiction to determine the application of Mrs Quintero Rondon, the primary visa applicant.

23. Pursuant to cl.187.311 it is a requirement for the grant of the visa as a secondary applicant that the secondary applicant is a member of a family unit of a person who holds a visa that was granted based on satisfying the primary criteria.

24. Based on the evidence before the Tribunal, the applicant is not a member f a family unit of a person who holds a visa that was granted on the basis of satisfying the primary criteria.

25. As the primary visa applicant has not satisfied the requirements for the grant of a Subclass 187 visa, the applicant also does not satisfy the requirements for the grant of a Subclass 187 visa.

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

    Jade Murphy
    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.