Kundnani (Migration)

[2018] AATA 5374

Kundnani (Migration) [2018] AATA 5374 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjay Kumar Kundnani

CASE NUMBER:  1701791

HOME AFFAIRS REFERENCE(S):           BCC2016/318323

MEMBER:Bridget Cullen

DATE:2 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 02 November 2018 at 9:48am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – nomination application refused – 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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 January 2016. 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 applicant is seeking a visa in Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination lodged by Kunkat Pty Ltd was refused by the Department on 11 January 2017.

6. The applicant appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The hearing was conducted jointly with the hearing of the related nomination refusal by Kunkat Pty Ltd.  In addition to being the visa applicant, Mr Kundnani is one of three directors of Kunkat Pty Ltd. The Tribunal also received evidence from Mr Vikash Katyara.  Mr Katyara is also a director of Kunkat Pty Ltd.

7. The applicants were represented in relation to the review by a registered migration agent, who is also a solicitor. The applicants were assisted by a NAATI Level 2 interpreter in the Urdu (Pakistan) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is subject to an approved nomination. 

   Nomination of a position

10. 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.

11. 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.

12. The applicant applied for the visa on the basis of being nominated by his employer, Kunkat Pty Ltd. An application by Kunkat Pty Ltd to the Department for approval of the nomination was refused by the Department on 11 January 2017. As the requirement that the Minister approve the nomination under cl. 187.233 of Schedule 2 had not been satisfied, the delegate found that the applicant did not meet the criteria in cl. 187.233 of Schedule 2 to the Regulations and refused the application.

13. Kunkat Pty Ltd and the applicant applied to the Tribunal for a review of the decision to refuse the nomination application and the visa application. When the applicant attended the hearing on 10 October 2018, the Tribunal explained that to meet cl187.233 the applicant must be the subject of an approved nomination.

14. On 15 October 2018, the Tribunal affirmed the decision to refuse the nomination application by Kunkat Pty Ltd. This was the nomination that was the subject of the declaration when the visa application was lodged by the applicant.

15. On 18 October 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act providing this information. The applicant was advised that the information was important as cl. 186.233 requires that the nomination be approved.

16. The applicant was requested to respond to this information by 1 November 2018. The applicant responded to the Tribunal’s invitation on 1 November 2018.  The applicant has responded, via his migration agent, with information complaining about the nomination decision that was made by the Tribunal, essentially seeking to re-ventilate the arguments made by Kunkat Pty Ltd in the nomination refusal application already determined by the Tribunal.  As the nomination decision has been made by the Tribunal, and the Tribunal is now functus officio in relation to that matter. 

17. The applicant has not provided any evidence that he is subject to an approved nomination.

18. Having considered the information before it the Tribunal is not satisfied that cl. 187.233(3) is met.

19. Therefore, cl.187.233 is not met, and the applicant does not meet an essential criteria for the grant of a Subclass 187 Visa.

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.

    DECISION

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

    Bridget Cullen
    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.