Mandalapu (Migration)

[2023] AATA 960

Mandalapu (Migration) [2023] AATA 960 (18 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sateesh Mandalapu

CASE NUMBER:  1928482

HOME AFFAIRS REFERENCE(S):          BCC2018/835946

MEMBER:Namoi Dougall

DATE:18 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2023 at 11:32am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – retail manager – subject of approved position nomination – related nomination application refused and decision affirmed in separate hearing – applicant forced to work in different location, underpaid, injured and threatened with withdrawal of nomination – investigation by Fair Work Ombudsman – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulation 1994 (Cth), Schedule 2, cl 187.223

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 21 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).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the nomination application lodged by Pinnacle Petroleum Pty Ltd (the nominating business) was refused by a delegate for the Minister on 20 August 2019. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

6. The applicant appeared before the Tribunal on 18 April 2023 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the position to which the application relates is the subject of an approved nomination.

Nomination of a position

1. 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.

2. 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.

3. On 4 April 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 187 visa on the basis of a nomination of a position made by the nominating buisness and that on 20 August 2019, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision and on 5 December 2022 the Tribunal affirmed the delegate’s decision to refuse the nomination.

4. On 6 April 2023, the applicant responded to the Tribunal’s letter of 30 March 2023. The applicant stated that he was sponsored by the nominating business to work at Liberty Henty, NSW in the nominated position, however, he was forced to work at Boundary Bend Store, Victoria. He only stated to work at Liberty Henty in 2019. The applicant also stated that when at Henty he worked more hours than he was paid for. Roster, payslips and a calculation of her underpayments were provided. The applicant also stated that every month he had to pay back money from his wage, as well as superannuation. Provided was an outcome of investigation dated 27 May 2020 from the Fair Work Ombudsman as to the nominating business’s underpayments and other contraventions of the relevant Award. The applicant also stated that he was injured at work on 5 January 2018 but was forced to work 50 to 60 hours every week. When the applicant told the owner of the nominating business of his injury, he was blackmailed with the threat of withdrawal or cancellation of her visa if he did not work 6 days a week. Provided was an MRI scan and report and a letter of acceptance of the applicant’s workers compensation claim by CGU Workers Compensation dated 31 December 2019.

5. At hearing the Tribunal explained the above criteria, particularly the criterion requiring the position to be the subject of an approved nomination was explained to the applicant comprehensively. The applicant confirmed that he understood these requirements. Further, the Tribunal explained that the nomination must be the one that was the subject of the declaration made as part of the current visa application. The applicant confirmed that he understood this requirement.

6. At the hearing, the Tribunal summarised the letter of 4 April 2023, in particular the adverse information as to the nomination application lodged by the nominating business being refused by the Departmental and that decision being affirmed by the Tribunal. The Tribunal asked if the applicant had any response or comments to the adverse information and the applicant stated he is no longer working for the nominating business as they pushed him to worked 50 to 60 hours after he was injured. They had applied for the visa based he worked in New South Wales but forced him to work in Victoria. They also took money from his wages. The Tribunal explained that the Tribunal does not have discretion and the applicant should seek advice.

7. On 20 August 2019, the Department refused the nomination of position which the applicant’s Subclass 187 visa application relates. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination of the position and the Tribunal affirmed the delegate’s decision on 5 December 2022. As the relevant nomination has been refused, the Tribunal must find that the position to which the application relates is not the subject of an approved nomination

8. Therefore, cl 187.233 is not met.

9. 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

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

Namoi Dougall
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.