ENUGANTI (Migration)

[2019] AATA 1846

ENUGANTI (Migration) [2019] AATA 1846 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ANUDEEP GOUD ENUGANTI

CASE NUMBER:  1905737

HOME AFFAIRS REFERENCE(S):           BCC2018/3224447

MEMBER:Karen McNamara

DATE:12 June 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 12 June 2019 at 1:34pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – company deregistered – position no longer available – decision under review affirmed

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 August 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 first named applicant Mr Anudeep Goud Enuganti (the applicant) is seeking the visa in Direct Entry stream.

5. The decision record provided to the Tribunal by the applicant records that the delegate refused to grant the visa because the applicant did not meet cl.187. 233 of Schedule 2 to the Regulations because a Department check of ASIC records indicated that the nominating business Gleam Accounting Pty Ltd was deregistered on 23 March 2018. The Department further noted that the Australian Business Register (ABN) lookup indicated the business’ ABN was cancelled from 23 April 2018. As the position was no longer available to the applicant, the delegate found that the applicant did not meet cl.187.233(5). Therefore, the applicant did not meet cl.187.233.

6. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his Registered Migration Agent who did not attend the hearing.

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 applicant meets the requirements of cl.187.233.

   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. On Friday 31 May 2019 at 3.48 pm, the applicant emailed the Tribunal seeking a postponement to attend the hearing scheduled for 10.00 am Monday 3 June 2019. The applicant attached a letter from his Consultant Psychologist as well as a completed response to the hearing invitation confirming his attendance. The Tribunal via return email advised the applicant‘s authorised representative as well as the applicant in person by telephone, that the hearing postponement request was declined and offered the applicant the opportunity to have the matter heard via telephone. The Tribunal attempted to call the applicant’s Migration Agent but he did not answer his phone and his voice mail was full.

13. The applicant attended the hearing on 3 June 2019. The Tribunal explained that in order to meet cl.187.233, the applicant must be the subject of an approved nomination.

14. The applicant told the Tribunal that he had previously engaged the services of a Migration Agent to assist him in obtaining a 187 visa. He told the Tribunal that he believed this Agent committed fraud in so far as offering the applicant an opportunity to obtain a visa when the nominating employer was deregistered prior to the applicant’s visa application being lodged with the Department. The applicant provided the Tribunal with a copy of a Memorandum of Mutual Understanding between himself and Australia Workpermit dated 6 August 2018.

15. The Tribunal acknowledges the dismay of the applicant and notes the impact this matter has had on the applicant’s mental health as conveyed in the Consultant Psychologist’s letter dated 31 May 2019. Whilst the Tribunal accepts the evidence suggesting the failure of the Australia Workpermit agent to assist the applicant, the Tribunal must however apply the legislation as it stands. As explained to the applicant at the hearing, the Tribunal must apply the law. 

16. There is no evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

17. Having considered the evidence before it, the Tribunal finds that the applicant does not satisfy cl 187.233(3).

18. Therefore, as the applicant does not meet an essential criterion for the grant of a subclass 187 visa, 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.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.