Pajjuru (Migration)

[2021] AATA 4282

Pajjuru (Migration) [2021] AATA 4282 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sarath Chandra Pajjuru
Ms Loka Pavani Murari
Miss Kushalika Pajjuru

CASE NUMBER:  2001111

HOME AFFAIRS REFERENCE(S):          BCC2019/2292075

MEMBER:Marten Kennedy

DATE:22 October 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 22 October 2021 at 3:01pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – nomination refused–not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223,186.233

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 January 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 April 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas as a consequence of a related decision being made to refuse to approve a nomination of a position by the applicant’s employer, Panduss Pty Ltd. As a consequence of nomination being refused the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations.

6. In matter 1935034 Panduss Pty Ltd I affirmed the decision to refuse to approve the nomination of a position.  My reasons for doing so are set out in the decision record for that matter.

7. On 31 August 2021, using the procedure provided for by section 359A of the Act, I wrote to the applicant to give him particulars of this adverse information and invite his response.

8. On 14 September 2021, the applicant responded to my invitation.  The applicant asked that I defer consideration of the matter pending the Federal Circuit Court dealing with an application for judicial review in respect of the decision in 1935034 Panduss Pty Ltd.

9. I decline to defer consideration of this application in the circumstances.  The refusal of the visas is the inevitable consequence of the refusal of the nomination.  I cannot know either the outcome or the timeframe of the Federal Circuit Court proceedings.  I do not consider that an indefinite deferral of these proceedings is appropriate.

10. As the applicant had responded to the invitation issued pursuant to section 359(2), and had not yet had an opportunity to appear before the Tribunal that he is entitled to have, I convened a hearing of the Tribunal today. The issue in the review was discussed at the hearing.  Neither the applicant nor his registered migration agent wished to raise any further matters.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

11. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

12. In addition, this criterion also requires that:

    ·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. As a consequence of my decision in matter 1935034 Panduss Pty Ltd, the applicant cannot satisfy the requirement that the nomination be approved. As such, the applicant cannot satisfy cl.186.223 of Schedule 2 to the Regulations.

14. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed. 

15. The other applicants rely on their status as members of the family unit of the applicant. As such they must each satisfy the requirement of cl.186.311 of Schedule 2 to the Regulations. This requires that they be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. The applicant does not and cannot hold the visa after satisfying the primary criteria, and it follows therefore that the members of his family unit will not satisfy cl.186.311 of Schedule 2 to the Regulations.

    DECISION

    The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Marten Kennedy
    Member

    
    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.