Balmuri (Migration)

[2020] AATA 1991

Balmuri (Migration) [2020] AATA 1991 (21 May 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manideep Balmuri

CASE NUMBER:  1818853

DIBP REFERENCE(S):  BCC2016/1866295

MEMBER:Warren Stooke AM

DATE OF DECISION:  21 May 2020

DATE CORRIGENDUM

SIGNED:28 May 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Date of Decision updated by Member to 21 May 2020

Warren Stooke AM
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manideep Balmuri

CASE NUMBER:  1818853

HOME AFFAIRS REFERENCE(S):          BCC2016/1866295

MEMBER:Warren Stooke AM

DATE:21 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 21 May 2020 at 7:39pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related position nomination refused – refusal set aside on review – applicant’s qualifications and work duties – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 27 May 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist, ANZSCO Code: 225113.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had an approved standard business sponsor for the nominated occupation of Marketing Specialist, ANZSCO Code: 225113.

6. The applicant appeared before the Tribunal on 11 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satish Mullapudi and Mr Naveen Reddy Yellal, who are the applicant's business owners. 

7. The applicant was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved standard business sponsor for the nominated position of Marketing Specialist, ANZSCO Code: 225113.

10. The witness provided evidence that he had graduated from Federation University with a Master of Business Administration and was issued with an academic transcript on 10 July 2015 [Tribunal File: Folio 21]. This transcript included the following subjects related to the nominated occupation of Marketing Specialist/Sales Promotion Officer:

    a.Change agent strategies;

    b.Competitive analysis;

    c.Marketing in the International Environment;

    d.Marketing; and

    e.Operations Management.

11. The witness stated that he undertakes the following duties in relation to the marketing and sale of Vodafone products:

    a.Maintain up to date product knowledge;

    b.Report to the Marketing Manager;

    c.Develop and manage the campaigns for different marketing plans and how to approach the market;

    d.Manage the after sale market delivery and expectations;

    e.Perform point of sale contact for the sales room;

    f.Qualify the leads from the data;

    g.Maintain up to date information (products and marketing status);

    h.Engage with the call sales team activities;

    i.Maintain activity targets in the market.

    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 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.

14. The evidence presented by the applicant has satisfied the Tribunal that the applicant has appropriate qualifications to undertake the scope of work and responsibilities pertaining to the nominated occupation.

15. On the basis of the evidence provided in this matter and presented in Case Matter: 1815034 concerning the approval of the nominated position and the Tribunal’s decision to substitute a decision of approval, the Tribunal is satisfied that the applicant in this matter has an approved standard business sponsor for the nominated position of Marketing Specialist: ANZSCO 225113.

16. Therefore, cl.187.233 is met

17. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    decision

18. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations.

    Warren Stooke AM
    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.