Gandla (Migration)

[2019] AATA 4155

Gandla (Migration) [2019] AATA 4155 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashwani Kumar Gandla
Mrs Lavanya Gandla

CASE NUMBER:  1807622

HOME AFFAIRS REFERENCE(S):           BCC2017/404030

MEMBER:Danielle Galvin

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 September 2019 at 9:24am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application withdrawn – position no longer available – decision under review affirmed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 applicants Regional Sponsored Migration Scheme (subclass 187) visa in the direct entry stream, under s.65 of the Migration Act 1958 (the Act).

2.The applicants applied for the visas on 31 January 2017. 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of cook.

5.The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) and r.187.233(5) of Schedule 2 to the Regulations because the nomination, lodged by K PANDIAN & A THANGARAJ (the nominator), was withdrawn on 29 March 2017 and therefore the position is no longer available to the applicant and the requisite criteria of r.187.233(3) and r.187.233(5) are not met.

6.On 17 October 2018 the Tribunal wrote to the applicant at the email address provided and advised them that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Regulations are met. Specifically the Tribunal advised that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination. The applicant had until 31 October 2018 in which to respond.

7.. On 29 October 2018 the applicant wrote to the Tribunal and advised that-

“The previous Was sold and as my wife was searching for something and found in mid November that the business was sale was under contract. And we weren’t in formed about this and waited for the owner. And then one of my friend who does Marketing had found that there is a business which is looking for staff on permanent Basis and they were ready to sponsor me and I went to interview and got selected. And ;later found that the business was sold in September when I went for my Brothers Funeral. Looking in the future I have ceased my work on 29 January thinking that’s my new business Sponsor would be helpful and shifted my self to Taralgon. And applied for a new visa. And after ceasing my work I camee to know that I need to have the previous visa too. I came to know I have 90 days to start my work in place and I have started applying for all the Managers positions All over the area and Found a job in Warragul At Edinburgh motor Inn in the end of may.And that’s the time I got a mail From the departmentstating intention to Cancel my Visa and i Have mentioned the case officer that I have nomination in place and the certain officer was saying I need to have done thislong back but I have explained that I was searching for the job but couldn’t find the work in time. And later My Nomination was approved in September 2017. And at present I am working At Edinburgh Motor Inn Warragul.”

8.The proceeding was listed for hearing on 26 March 2019 and was listed with another application from the applicant in proceeding 1715270, a review of the Department decision to cancel the applicant’s Subclass 457 visa.

9.The applicants appeared before the Tribunal on that day to give evidence and present arguments. The Tribunal received oral evidence from the applicant. The applicant stated that he began working as a Hotel Manager with Om Care Aust. Pty Ltd claiming that he was interviewed for the position of Hotel Manager in 2016. He stated that he commenced working in January 2016 as a Hotel Manager. He stated that in September 2017 his brother passed away in India and he left for about 15 days to return there. During his absence he claimed that the business was sold. He attended a party at the business in October 2017 and was advised of this. He claimed that he was also skilled as a cook and that he was looking for other work. He wished to find a hotel position. He stated that he had discussions with the employer and advised him that he was looking for and had another option to be a cook. He stated he then went to Taralgon in early February 2017 for a cook’s job having lodged a 187 visa application on 31 January 2017. He did not seek advice in relation to the impact of these decisions. He resigned from Om Care Aust. Pty Ltd on 29 January 2017 and accepted a job in Taralgon on 30/1/17 lodging his visa on the next day. He stated that he was unaware of the  the risk in doing so in relation to his 457 visa. In February the new employer stated that he could not employ him due to the existence of his 457 visa. The applicant never commenced employment in the position. He stated that on 6 May 2017 he obtained a job at Edin Star and is currently working there as a Hotel Manager. He claimed that their nomination in relation to this role was approved in September 2017. The applicant claimed to have commenced work there in April 2018. He stated that he is currently employed as a hotel manager and is living in Warragul. He stated that he received a bridging visa on 24 December 2017. The applicant stated that if he had to return to India his only concern would be the health of his son who has had health issues since birth. His extended family resides in India.

1. He further stated that he had been unaware of the risk in making the decision to leave the sponsor’s employment and if he had to return to India he would be without the medical support he has needed for his child. Although his family is in India the quality of the medical care his child has received in Australia would not be available in India. He stated that the reason that he wished to stay in Australia is solely to have access to the medical care needed for his son.

2. The hearing concluded and the applicant was given until 19 April 2019 to make any further submissions and provide any further material he wished to submit in relation to the review.

3. Following the hearing the primary applicant provide to the Tribunal the following documents:

   ·Agreement Contract between Edin Star Pty Ltd t/as Edinburgh Motor Inn  dated and signed on 3 April 2018 engaging the primary applicant as a Resident Motel Manager;

   ·Letter dated 18/2/19 from Monash Children’s Hospital to Dr. Sari Haylaar in relation to the primary applicant’s son born 6 October 2018 in relation to his seizures;

   ·Notice of Decision nomination approval notice for subclass 457 visa naming the sponsor as Edin Star Pty Ltd in the occupation of Hotel Manager dated 30 August 2019.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requisite criteria for the grant of the visa.

Nomination of a position

1. Clause 187.233 is applicable in this case and 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.

2. 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.

3. The withdrawal of the nomination by the sponsor and the evidence provided by the applicant that he did not and does not work for the nominator means that the requisite criteria of cl.187.233 and in particular cl. 187.233(2) and cl.187.233(5) have not been met.

4. Therefore, cl.187.233 is not met.

Other criteria

1. 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.

2. The secondary applicant has made no claims in relation to the primary criteria to be met. Given that the applicant has failed to meet the primary criteria the secondary applicant fails to meet the secondary criteria as she is not a member of the family unit of the holder of a visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Danielle Galvin
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.