Kumar (Migration)

[2023] AATA 3033

Kumar (Migration) [2023] AATA 3033 (29 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sunil Kumar
Mrs Neeta Bhalchandra Pardhi

REPRESENTATIVE:  Mr Krisztian Toth

CASE NUMBER:  1928546

HOME AFFAIRS REFERENCE(S):          BCC2019/1699251

MEMBER:Terrence Baxter

DATE:29 August 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 29 August 2023 at 8:34am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Web Administrator – subject of an approved nomination – request for referral for Ministerial Intervention declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 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 5 April 2019. 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 Web Administrator for Shine Infotech Pty Ltd.

5. The delegate refused to grant the visas on 26 September 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required that he be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 20 August 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl 187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 9 October 2019.

8. The applicants appeared before the Tribunal by video conference on 23 August 2023 to give evidence and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video conference.

10. The applicants were represented in relation to the review at the time of the hearing by legal practitioner Mr Krisztian Toth. The representative attended the Tribunal hearing by video conference.

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 there is an approved nomination.

    Nomination of a position

13. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

15. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Web Administrator approved, with the applicant as nominee, on 5 April 2019. The nomination application was refused on 20 August 2019 and the nominator sought review of that decision with the Tribunal on 6 September 2019.

16. On 30 June 2023, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

17. On 6 July 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment 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 particulars of the information were as follows:

    On 30 June 2023, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by Shine Infotech Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.187.233(1).

    If we rely on this information in making our decision, we may find that Mr Sunil Kumar
    does not meet cl.187.233(3), which requires the nomination be approved, and affirm
    the decision under review.

    We may subsequently find that Mrs Neeta Bhalchandra Pardhi does not meet the
    secondary visa criterion cl.187.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 187 visa, and affirm the decision under review in respect of their applications (sic).

18. The Tribunal notes that the application for nomination for the position of Web Administrator has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.233(3) is not met.

19. Therefore, cl 187.233 is not met in respect of the applicant.

20. 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.

21. In relation to the second named applicant, 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 primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa and is not the holder of a Subclass 187 visa, it follows that the second named applicant does not satisfy the requirements of cl 187.311. The Tribunal finds accordingly.

    Request to the Tribunal for referral for Ministerial intervention

22. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

23. In response to the Tribunal’s invitation to the applicants dated 6 July 2023, the representative advised on 24 July 2023 that the applicants requested referral for Ministerial intervention. The representative submitted that, while the first named applicant was offshore, the second named applicant was employed in Australia by the nominator as a software engineer. The representative submitted that the second named applicant was aged 46 years and that the first named applicant would turn 45 in September 2023 and that therefore most skilled pathways would be closed to both applicants.

24. In deciding whether to refer this matter to the Minister for consideration under s 351 of the Act, the Tribunal has considered the Minister’s guidelines on ministerial powers (the Minister’s Guidelines) contained in the Department’s Procedures Advice Manual (PAM3). The Tribunal notes that the Department’s policy is not binding on the Tribunal, but the Tribunal may refer to it. The Minister’s Guidelines state that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of the intervention powers.

25. Examples of the unique or exceptional circumstances listed in the Minister’s Guidelines include:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

    ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

26. Prior to the hearing, the applicants provided the following evidence to the Tribunal:

    a.Payslips disclosing that the second named applicant had been paid a salary of $102,553.74 by the nominator during the 2023 financial year.

    b.Payslips disclosing that the second named applicant had been paid a salary of $141,745.05 by Wipro Technologies during that financial year.

    c.The second named applicant’s notice of taxation assessment for the 2022 financial year that she had a taxable income of $188,787 in that year.

    d.A certificate from Wipro Technologies confirming that the second named applicant had been employed by that company since 17 December 2021.

    e.A Labour Market Update issued by Jobs and Skills Australia for the quarter ending December 2022.

27. The nominator provided evidence in the related nomination matter that the applicant is the sole director and shareholder of the nominator, which describes itself as a full-service digital agency assisting clients to grow online businesses. The applicant stated at the hearing that the nominator helps small businesses increase their revenues and thereby contributes to the local economy. He said that he had travelled overseas to assist his mother in India during an illness and that he had been unable to return to Australia because of issues associated with his visa. He said that he had been able to provide some services to clients of the nominator remotely, but that he had been unable to provide a full range of services because clients did not wish to give him remote access to their data while he was offshore.

28. The second named applicant stated at the hearing that she had been alone in Australia since the applicant had left to travel to India and that the applicants sought a favourable decision in respect of their application so that the family could be reunited. She said that she was employed in a responsible position with Wipro Technologies and that she possessed skills that enabled her to help her employer provide services to its clients.

29. The representative submitted that the second named applicant was a highly paid and skilled employee of Wipro Technologies and referred to the Labour Market Update in which it was reported that occupations in the fields of software programming and ICT business and systems analysis were currently in high demand.

30. The Tribunal has considered the request for referral for Ministerial intervention. The Tribunal considers that the applicants have not identified an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident, who would suffer harm or continuing hardship as a result of the refusal of the visa application. The Tribunal further considers that the applicants have not established that exceptional economic, scientific, cultural or other benefit would result from their being permitted to remain in Australia. The Tribunal is not satisfied that there are unique or exceptional circumstances in this case, justifying a referral to the Minister.

31. Having considered all the evidence and submissions, the Tribunal has decided not to refer the matter for possible Ministerial intervention under s 351 of the Act. The Tribunal notes that it is open to the applicants to make a direct request for Ministerial intervention.

    DECISION

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

    Terrence Baxter
    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.