Devanaboyina (Migration)

[2023] AATA 1582

Devanaboyina (Migration) [2023] AATA 1582 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raja Shekhar Devanaboyina
Mrs Jyotsna Samarla
Mr Anirudh Sai Devanaboyina

REPRESENTATIVE:  Ms Mi Jung Park (MARN: 0955026)

CASE NUMBER:  1929012

HOME AFFAIRS REFERENCE(S):          BCC2018/729860

MEMBER:Namoi Dougall

DATE:30 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 30 May 2023 at 10:25am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – database administrator – subject of approved position nomination – related nomination application refused and affirmed in separate hearing – request for time to allow son to complete school year and applicant to complete projects and tax obligations – not reasonable to adjourn – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.321

CASES

Huo v MIMA [2002] FCA 617

Manna v MIAC [2012] FMCA 28

MIAC v Li [2013] HCA 18

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 on 24 September 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 February 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Database Administrator.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the position to which the application relates was not the subject of an approved nomination.

6. The applicant appeared before the Tribunal on 28 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the director of the nominating buisness, Mr Yerramsetti.

7. On 15 May 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting the applicants to comment on or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 186 visa on the basis of a nomination of a position made by the nominating buisness and that on 27 July 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision on 15 May 2023.

8. On 29 May 2023, the applicant responded to the Tribunal’s letter of 15 May 2023 with a statement setting out the length of time and the experience he has had in the ICT industry. The statement set out the reasons why he came to Australia. The applicant requested that the Tribunal provide an outcome which will allow the applicant 6 months for his son to complete his school year and for him to complete projects and his taxation obligations.

9. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, to provide a mechanism of review that: is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975. It has been over 5 years since the visa application was lodged and 3.5 years since the delegate’s decision and, in light of these timeframes, and that the applicant cannot meet requirements of 186.223, the Tribunal will not defer making its decision. In deciding not to defer making its decision, the Tribunal has had regard to the Court’s considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes.

10. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

    Nomination of a position

13. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

14. In addition, this criterion also requires that:

    ·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 reg 1.13A and reg 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.

15. On 27 July 2019, the Department refused the nomination application lodged by the nominating business and the delegate’s decision was affirmed by the Tribunal on 12 May 2023. Therefore, there is no approved nomination to satisfy cl.186.233(2) and the primary applicant does not meet cl.186.233.

16. In relation to the other applicants, the Tribunal notes that cl.186.321 of Schedule 2 to the Regulations requires that secondary visa applicants be members of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the other applicants do not satisfy the requirements of cl.186.311 and the Tribunal finds accordingly.

17. The applicants have only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Namoi Dougall
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.