Pamidimalla (Migration)

[2021] AATA 4450

Pamidimalla (Migration) [2021] AATA 4450 (18 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Neela Reddy Pamidimalla

CASE NUMBER:  2103738

HOME AFFAIRS REFERENCE(S):          BCC2017/545435

MEMBER:K. Chapman

DATE:18 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 18 November 2021 at 9:27am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Federal Circuit Court remittal – direct entry stream – subject of approved position nomination – refusal of related nomination application re-affirmed after remittal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

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, Mr Neela Pamidimalla, applied for the visa on 9 February 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. In the present matter, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) (ANZSCO Code 142111). The delegate refused to grant the visa because, in their view, the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, as the associated nomination application lodged by Vishvam Pty Ltd ATF The Vishvam Unit Trust (‘the nominator’) was refused on 17 January 2018. On 6 March 2018, the applicant applied to the Tribunal for review of the visa refusal decision.

4. On 9 June 2020, the Tribunal (differently constituted) affirmed the decision to refuse to approve the nomination: AAT reference 1805923. The applicant subsequently applied to the Federal Circuit Court of Australia for judicial review. On 10 March 2021, the Court made orders granting relief to the applicant and remitting the matter to the Tribunal for reconsideration.

5. The applicant appeared before the Tribunal by telephone on 17 November 2021 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone and could appropriately hear the proceedings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

   Nomination of a position

8. 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.

9. 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 r.1.13A and r.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.

10. During the review hearing, the applicant explained to the Tribunal that he is genuinely working for the nominator as a Retail Manager and not a Retail Supervisor. According to the procedure in s.359AA of the Act, the Tribunal raised with the applicant the following information:

    ·The application for approval of the nominated position made by Vishvam Pty Ltd ATF The Vishvam Unit Trust (‘the nominator’) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but ultimately the Tribunal in matter number 2103756 affirmed the decision under review. This means that the nominator’s application for the nominated position has not been approved.

11. The Tribunal indicated that this information is relevant to the review as it tends to suggest that there is not an approved nomination relating to the applicant with respect to his visa application. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason, or a part of the reason, to affirm the decision under review. The applicant confirmed that he understood why the information is relevant to the review. The applicant was offered additional time before commenting on or responding to this information, however, he chose to respond immediately. The applicant explained that the nomination application was made in 2017 for the occupation of Retail Manager, however the Department believed it to be a Retail Supervisor position. The applicant added that he had been to the Tribunal previously and then to the Federal Circuit Court of Australia, and the matter was remitted back to the Tribunal. He contends he is working as a Retail Manager and has done so for around four years. The Tribunal has carefully considered the applicant’s response to the s.359AA invitation.

12. On balance, the Tribunal is satisfied that the nomination of the applicant for the position of Retail Manager (General) (ANZSCO Code 142111) has not been approved. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.187.233(3) are not met. It follows that the applicant does not satisfy cl.187.233 of Schedule 2 to the Regulations. The Tribunal so finds.

13. 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

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

    K. Chapman
    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.