Kangotra (Migration)

[2022] AATA 1285

Kangotra (Migration) [2022] AATA 1285 (2 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ronika Kangotra
Mr Amit Kangotra
Master Arsh Kangotra
Master Ranveer Kangotra

REPRESENTATIVE:  Mr George William Lombard

CASE NUMBER:  1914024

HOME AFFAIRS REFERENCE(S):          BCC2017/2217822 PNJ  BCC20172217822

MEMBER:SM Justin Owen

DATE:2 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2022 at 10:17am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – retail manager – subject of approved position nomination – refusal of related nomination application affirmed on review – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 187.311

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 (Cth) (the Act).

2. The applicants applied for the visas on 22 June 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 (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 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  stream, to work in the nominated position of Retail Manager (ANZSCO 142111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations which required Mrs Ronika Kangotra to be the subject of an approved nomination. The delegate found that the nomination lodged by KSP Group Pty Ltd (the nominator) had been refused.

6. The delegate also found that the second-named, third-named and fourth-named applicants (Mr Amit Kangotra, Master Arsh Kangotra and Master Ranveer Kangotra) could not be granted a Subclass 198 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring them to each be a member of the family unit of a person who met the primary criteria and holds a Subclass 187 visa.

7. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.  The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.

8. The primary visa applicant (the ‘first-named applicant’), Mrs Kangotra, appeared before the Tribunal on 3 March 2022 via videoconference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kuldip Singh (the nominator) in the related matter for the nomination application (AAT Case file 1910079).  The related matters were heard concurrently in a combined hearing. 

9. The applicants were represented in relation to the review by their registered migration agent. Their agent also attended the hearing via videoconference. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl. 187.233.

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 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.

14. On 15 March 2022, the Tribunal affirmed the decision refusing the approval of the nomination made by KSP Group Pty Ltd (the nominator) in respect of the applicant.  As the nomination has been refused, the applicant does not satisfy cl.187.233(3) and as such cl.187.233 is not met. 

15. On 17 March 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act (dispatched by email to the representative).  The letter invited the applicants to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.  The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by KSP Group Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.187.233(3) which requires the nomination to be approved.  As the nomination has been refused, cl.187.233(3) is not met. 

16. On 31 March 2022 the applicants responded to the s.359A invitation.  The applicant acknowledged that the Tribunal has affirmed the Department’s decision made on 15 March 2022 not to approve the nomination made by KSP Group Pty Ltd.  No further submissions were made.    

17. The Tribunal notes that there is no discretion within the Act or the Regulations to waive the requirements of cl.187.233. 

18. At the hearing of 3 March 2022 the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Act and the Regulations are satisfied, and that in her case, her visa application is required to be subject to an approved nomination.  In this instance, there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not subsequently been withdrawn. 

19. On the evidence before it, the Tribunal finds the nomination application associated with the position as not approved. Therefore, the applicant does not meet cl.187.223(3) of Schedule 2 of the Regulations.

20. As the first-named applicant does not meet an essential criterion for the grant of a Subclass 187 visa, cl.187.233 of Schedule 2 is not met.

21. There is no evidence before the Tribunal that either the second-named applicant, the third-named applicant and the fourth-named applicant meets the primary requirements for the grant of the visa. 

22. In relation to the second-named applicant Mr Amit Kangotra, the third-named applicant Master Arsh Kangotra, and the fourth-named applicant Master Ranveer Kangotra, the Tribunal notes that cl.187.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the first-named or primary applicant) who holds a Subclass 187 visa that has been granted on the basis of satisfying the primary criteria for the grant of the visa.

23. Given the first-named applicant Mrs Ronika Kangotra has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it subsequently follows that the second-named applicant Mr Amit Kangotra, the third-named applicant Master Arsh Kangotra, and the fourth-named applicant Master Ranveer Kangotra, as members of the first-named applicant Mrs Ronika Kangotra’s family unit, are therefore unable to satisfy the criteria for this visa class. As such, the second-named, third-named and fourth-named applicants do not satisfy cl.187.311 of Schedule 2 to the Regulations.

24. 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

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

    Justin Owen
    Senior Member

    
    
    

    ATTACHMENT A