Kumar (Migration)

[2022] AATA 3857

Kumar (Migration) [2022] AATA 3857 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kunal Kumar

REPRESENTATIVE:  Mrs Vaneet Kaur Chadha (MARN: 1686379)

CASE NUMBER:  1912789

HOME AFFAIRS REFERENCE(S):          BCC2018/946094

MEMBER:Penelope Hunter

DATE:25 October 2022

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 25 October 2022 at 4:56pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Retail Manager – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

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 (Cth) (the Act).

2. The applicant applied for the visa on 27 February 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the associated nomination lodged by the applicant’s nominating employer Pramukh Swami Maharaj Pty Ltd had not been approved.

6. On 19 September 2022 the Tribunal wrote to the applicant pursuant to the provisions of s 359A of the Act inviting the applicant to provide comment on information that it considered would be a reason or a part of the reason for affirming the decision under review in writing. The relevant information was that on 20 April 2022 the Tribunal had affirmed the review application lodged by Pramukh Swami Maharaj Pty Ltd. The Tribunal explained the relevance of the information and informed the applicant if it relied on the information that it may find that the relevant nomination had not been approved and may then go on to find that the applicant did not meet the requirement of cl 187.233(3) of Schedule 2 to the Regulations. Consequently this would be a reason or part of the reason for the decision under review to be affirmed.

7. On 18 October 2022, the Tribunal received a request from the applicant for an extension of time to respond to the invitation, as the applicant needed three weeks to request documents. On 19 October 2022, the Tribunal advised the applicant that it would consider the request for an extension of time to provide documents at the hearing on 24 October 2022.

8. The applicant appeared before the Tribunal on 24 October 2022 by telephone to give evidence and present arguments. The Tribunal determined it was reasonable in the circumstances to hold a hearing by telephone, given the issue under review and the location of the applicant in regional NSW. 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 telephone.

9. The applicant was represented in relation to the review, although his representative did not participate in the hearing.

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 satisfies cl 187.233(3).

    Nomination of a position

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. The Tribunal discussed with the applicant his adjournment request. The applicant identified that documents he was seeking were time for the nominating employer to make a new nomination or for his existing employer explore such action. The applicant did not claim to have any information to refute the Tribunal’s invitation to comment. The Tribunal refused the request for the extension as it was not satisfied that such action would alter its findings in relation to the issues under review.

15. The applicant has applied for the visa under review on the basis of a nomination in the position of Retail Manager by Pramukh Swami Maharaj Pty Ltd. As set out in the decision record of the delegate, submitted to the Tribunal by the applicant, this nomination was refused a delegate of the Minister on 16 April 2019.

16. The applicant confirmed for the Tribunal that he understood the reason for his visa refusal by the Department and he understood the importance of the approval of the nomination for his visa grant. The applicant was concerned about this related dependence on the nomination and submitted that it was all dependent on his nominator doing the right thing. The applicant said that he had done everything properly with his application and provided appropriate documentation but the nominator and agent engaged had let him down. The applicant submitted that 187 visa applicants were particularly vulnerable to these circumstances. He did not believe that his nominator has acted in his interests, this was outside his control and impacted on his opportunity to obtain the visa under review. The Tribunal acknowledges the applicant’s submissions about his particular vulnerabilities.

17. When asked about his employment with his nominator, he told the Tribunal that he had ceased working for Pramukh Swami Maharaj Pty Ltd around February 2022. This raised concerns for the Tribunal as to whether the position would still be available to the applicant and he would otherwise have satisfied cl 187.233(5) of Schedule 2 to the Regulations. The applicant told the Tribunal that was unaware of the nomination refusal until he contacted the director, who had been overseas for several months. The applicant claimed that it was indicated to him that the director would look at situation in the future and review whether to lodge another nomination or else see what could be done.

18. The information before the Tribunal, as disclosed to the applicant in writing pursuant to the provisions of s 359A and orally at the hearing pursuant to s 359AA, is that on 20 April 2022, upon review the Tribunal affirmed the decision to refuse the nomination application lodged by Pramukh Swami Maharaj Pty Ltd. The applicant in his comments did not have any evidence to dispute this.

19. There is no information before the Tribunal that Pramukh Swami Maharaj Pty Ltd has applied for a review of the Tribunal decision, and in any event it would not be appropriate for the Tribunal to delay a decision in this matter for that reason. Any further nominations lodged by Pramukh Swami Maharaj Pty Ltd will not be the subject of the declaration made as part of the current visa application. The claim that these options may be considered is considerably speculative given the applicant’s separation from the nominator since February 2022. In any event the subclass 187 visa has been discontinued and the Tribunal is not aware of any existing opportunity to apply for a new nomination for this subclass.

20. The applicant also told the Tribunal that he was busy still working in the position of Retail Manager, he now had a further three years’ experience in the role and a positive skills assessment. His current employer may wish to consider supporting him in an application for a further visa or he may explore other visa options. These are matters outside the consideration of the Tribunal and not relevant to the task of the Tribunal under review. It is open to the applicant to further explore these matters, but it is not considered a reason for the Tribunal to refrain from making a decision in this matter or granting an extension of time to submit documents in this matter.

21. Therefore on the evidence before it, the Tribunal finds that the relevant nomination by Pramukh Swami Maharaj Pty Ltd in respect of the visa application under review has not been approved. The applicant is not the subject of an approved nomination and has not met cl 187.233(3).

22. It therefore follows that cl 187.233 of Schedule 2 to the Regulations is not met as a whole

23. 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

24. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Penelope Hunter
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.