Macha (Migration)

[2023] AATA 1522

Macha (Migration) [2023] AATA 1522 (11 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krishna Sai Macha

REPRESENTATIVE:  Mr John Kotsifas (MARN: 0323893)

CASE NUMBER:  1920555

HOME AFFAIRS REFERENCE(S):          BCC2018/828058

MEMBER:Amanda Mendes Da Costa

DATE:11 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 11 April 2023 at 8.45am

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 – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 20 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 (General) ANZSCO 42111.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. The Tribunal has considered the material in both the Departmental and Tribunal files.

7. The Tribunal notes that it wrote to the applicant advising that it had considered all the material before it relating to the review application, but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 17 April 2023.

8. On 17 March 2023 the Tribunal wrote to the applicant pursuant to s359A of the Act, inviting him to comment on or respond to information that it considered would be the reason or part of the reason for affirming the decision under review.  The particulars of this information were:

   ·The application for approval of the nominated position made by VENKATASAI SERVICES PTY LTD (the nominator) was refused by a delegate of the Minister.

   ·The nominator sought a review of that decision, but the delegate’s decision was affirmed by the Tribunal.

   ·This means that the nominator’s application for the nominated position has not been approved.

9. The Tribunal explained that this information was relevant to the review because it is a requirement for the grant of the visa that the position specified for the applicant in the visa application is the subject of an approved nomination.

10. The Tribunal further explained that if it relied on this information it may find that the position specified for the applicant in the visa application was not the subject of an approved nomination.  This would mean that the applicant did not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision under review.

11. The applicant was advised that any comments or response should be provided (in writing) by 31 March 2023 and were further about the consequences of not providing the comments or response by the required date.

12. The applicant did not provide the requested comments or response by 31 March 2023 or at all and the applicant has not requested additional time to provide evidence and present arguments, relating to the review application.  As a consequence, the applicant has lost the right to a hearing and the Tribunal has cancelled the hearing on 17 April 2023.

13. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review.

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

15. The applicant has not provided the information invited to be provided, within the prescribed period set for this purpose.

16. The Tribunal has taken into account the fact that the applicant has been aware since the delegate’s decision on 8 July 2019 of the reasons for the visa being refused (over three years ago).

17. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide information addressing the central issues arising in the application for review, or in which to request an extension of time in order to provide that information but has not either provided the information or requested an extension of time.  Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under cl 187.233.     

18. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant meets the criteria in cl 187.233 of Schedule 2 to the Regulations.

    Nomination of a position

21. 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.

22. 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.

23. Departmental and Tribunal records show that the application for approval of the nominated position made by the nominator for the applicant was refused by a delegate of the Minister[1]. The nominator sought a review of that decision, but it was affirmed by the Tribunal on 9 September 2022.  This means that the nominator’s application for the nominated position has not been approved.

    [1] Delegate’s decision made in relation to the nominator on 6 June 2019.

24. Therefore, cl 187.233 is not met.

25. 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

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

    Amanda Mendes Da Costa
    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.