Nukalagudem (Migration)

Nukalagudem (Migration) [2020] AATA 1330 (30 April 2020)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sai Kiran Nukalagudem
CASE NUMBER:  1831257
HOME AFFAIRS REFERENCE(S):          BCC2016/4299351
MEMBER:Alan McMurran
DATE:30 April 2020
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 30 April 2020 at 2:26pm

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 – withdrawal of related nomination case based on agent’s error – related nomination case reinstated – nomination application refused – no response to s 359A invitation – not entitled to appear before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 24 October 2018 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 (the Act).
The applicant applied for the visa on 20 December 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General).
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 applicant was not the subject of a nomination which the Minister has approved.
The Tribunal wrote to the applicant on 14 April 2020 under section 359A of the Act. Particulars of the adverse information were provided to the applicant that the nominator, Shri Sai Nidhi Pty Ltd was unsuccessful in its review application and as a result, the visa applicant was not the subject of an approved nomination. The applicant was requested to respond by 28 April 2020, failing which the applicant would lose any entitlement to appear at a hearing to give evidence and present arguments.
The applicant did not respond to the Tribunal letter, and accordingly the Tribunal has determined the matter under section 360(2)(c) of the Act, based on the information before it and without taking any further action to obtain the applicant’s views on the information.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the subject of a nomination which the Minister has approved.[1]
[1] regulation 187.233 (3)
The Tribunal has available for consideration the Department’s electronic file, and the information from the Tribunal’s case file.
The Tribunal history indicates that following lodgement of the application with the Tribunal, the applicant submitted a copy of a current passport and the decision record. The Tribunal invited the applicant to a combined hearing with the nominator to be held on 13 December 2019.
On 6 December 2019, the applicant’s representative requested an adjournment of the hearing on the basis the nomination application had been withdrawn by error and reinstatement of the application was being considered.
On 10 December 2019 the representative sent a further letter stating:
“Dear Member
I am writing this email in regards to the Hearing of my clients review
application, Details are mentioned below:
Applicant Name - Mr Sai Kiran Nukalagudem
Case no- 1831257
The applicant client - Mr Sai Kiran Nukalagudem is sponsored for visa 187
RSMS by employer Shri Sai Nidhi Pty Ltd t/a United Innisfail.
I am also the migration agent for Shri sai Nidhi Pty/Ltd (employer)
for the associated RSMS nomination review application Case number- 1825183
I was representing Shri Sai Nidhi Pty Ltd. for another AAT review application
case number 1824130.
The client instructed me to withdrew application with case number 1824130
on 26th August 2019.
While applying for the withdrawal application, I made an error and
accidentally put the wrong case number and on 2nd October 2019 the
file-1825183 was withdrawn on instead of file number 1824130.
We are requesting the member to give additional time for visa applicants
review file as the associated 187 Nomination review case number - 1825183,
was withdrawn due to error by the migration agent (me).
I have already requested the member for the reinstatement of the review for
187 nomination application in writing and also after visiting the AAT Brisbane
office on 10th dec 2019.I was advised by front staff that the Tribunal officer has
received the request for reinstatement and is awaiting a response from the Member.
So i would request the member to please consider our circumstances
and give additional time for Visa applicant Case no- 1831257
until the associated nomination application has been reinstated and reviewed
otherwise the applicant's immigration status will be adversely affected and would not receive a fair review.”
On 13 December 2019, the Tribunal wrote to the visa applicant advising that “The Member has considered the request carefully and has agreed to postpone the hearing. As soon as a new hearing date is available, we will write to you again.”
Following consideration of a submission by the representative, the related nomination case for review in the Tribunal[2] was reinstated on 12 December 2019, following a decision that a withdrawal in that matter was based on the agent’s error, and it would be unfair not to allow the matter to proceed and the application reviewed.
[2] Tribunal case number 1825183
After an exchange of further information, the nominator’s representative agreed to a decision being “made on papers”, and accordingly the Tribunal proceeded to deal with the nominator’s matter[3] without requesting any further information, and without a hearing.
[3] ibid
On 14 April 2020 the Tribunal affirmed the decision under review to refuse the nomination.
Nomination of a position
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. In addition, this criterion also requires that the nomination has been approved and has not been subsequently withdrawn.
The visa applicant has provided no additional information when requested to do so by the Tribunal. The visa application in any event is dependent upon the outcome of the nominator’s application for the proposed employment in regional Australia.
The Tribunal finds that on 14 April 2020, following the Tribunal’s decision on the nomination review, the nomination application is refused. The Tribunal finds that the visa applicant is not the subject of a nomination which the Minister has approved, or in respect of the refusal of an application by the nominator which is still under review, or subject to an appeal, and sub clause (3) of regulation 187.233 is not met..
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.
The Tribunal finds that cl. 187.233 of schedule 2 to the Regulations is not met.
DECISION
The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Alan McMurran
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.

[2020] AATA 1330

30 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction