Mangisetty (Migration)

[2021] AATA 3940

Mangisetty (Migration) [2021] AATA 3940 (14 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karthik Mangisetty

CASE NUMBER:  1900732

HOME AFFAIRS REFERENCE(S):          BCC2018/839834

MEMBER:Michelle East

DATE:14 October 2021

PLACE OF DECISION:  Perth

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

Statement made on 14 October 2021 at 4:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – related nomination application refused and no jurisdiction for tribunal to review – employer’s change of business name – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(2)

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 Cook (ANZSCO 351411).

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 the nominator was not approved.

6. The applicant appeared before the Tribunal on 14 October 2021 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  The Tribunal also asked the applicant at the hearing if he was happy to proceed by telephone and he confirmed he was.

8. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

    Nomination of a position

11. 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.

12. 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.

13. On 14 September 2021 the Tribunal wrote to the applicant pursuant to section 359A of the Act with particulars of the following information:

    On 13 December 2018 the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of CHINTAMANI PTY LTD.  On 20 April 2021, the Tribunal found it had no jurisdiction to review the Department’s decision to refuse the nomination.  Consequently, the decision made by the Department of Home Affairs on 29 November 2018, to refuse the nomination, stands.

14. The applicant was advised that the information was relevant to the review because in order to satisfy the requirements of clause 187.233(2) of Schedule 2 to the Regulation, it requires the applicant to have a nomination which has been approved by the Minister.

15. The applicant responded that he had continued to work for the same employer, but the business name had changed.  He provided evidence of a suitable skills assessment for his occupation of Chef.  He further stated:

    Due to this pandemic of COVID situation its hard to apply any visa further even though I have got my skilled as chef, I hope you understand my situation and please help me giving a positive response on my future which I am a genuinely hardworking person with good leadership responsibilities.

16. The Tribunal asked the applicant if he had anything further to add.  The applicant explained that he had been working for the same employer for four years and enjoyed living in Mt Barker.  He said he is well liked, and nobody could make a negative comment about him.  The Tribunal understands the difficulty of the applicant’s situation and has significant sympathy for him.  Unfortunately, however, it has no discretion to make a favourable decision.

17. Based on the evidence before it, the Tribunal is not satisfied at the time of its decision that there is an approved nomination. Therefore cl.187.233(3) is not met.

18. 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

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

    Michelle East
    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.