Kotakala (Migration)

[2022] AATA 1619

Kotakala (Migration) [2022] AATA 1619 (22 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nagalatha Kotakala
Mr Venkata Varaha Kanaka Naga Prakash Kotakala
Miss Venkata Girija Kotakala
Mr Abhishek Naidu Kotakala

CASE NUMBER:  1903968

HOME AFFAIRS REFERENCE(S):          BCC2017/1712226

MEMBER:Ian Berry

DATE:22 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 22 March 2022 at 12:37pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – office manager – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 373A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASE
Hasran v MIAC [2010] FCAFC 40

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 13 May 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 Direct Entry stream, to work in the nominated position of Office Manager ANZSCO 512111.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the applicant’s nomination by C Clerc & TC Clerc was refused.

6. The applicants were represented in relation to the review by their registered migration representative J Zeng.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant’s have an approved nomination.

   Section 359A invitation

9. On 7 March 2022, the Tribunal wrote to the applicants, under s.359A of the Act, inviting the applicants to provide information or comment, in writing, on the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review:

10. The particulars of the information were:

    ·On 13 May 2017, you lodged an application for a 187 visa with the Department of Home Affairs (then Department of Immigration and Border Protection) (the Department).

    ·On 21 December 2018, the nominator, C Clerc & T. C Clerc, had their nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 9 January 2019.

    ·On 3 March 2022, the Tribunal affirmed the Department’s decision to refuse the nomination.

11. Further, the invitation set out the following information:

    This information is relevant to the review because if the primary applicant cannot satisfy the criteria in clause 187.233 then the visa application cannot be granted.

    If we rely on this information in making our decision, we may affirm the decision made by the Department.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 21 March 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

12. The applicant’s did not respond or comment on the Tribunal’s 7 March 2022 invitational letter.

13. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 21 March 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement the applicants might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments and for the Tribunal to proceed to make its decision.

14. The applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

    Nomination of a position

15. 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.

16. 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.

17. The applicants’ nomination was refused by the Tribunal on 7 March 2022. 

18. Therefore, 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Ian Berry
    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.