PEDDITI (Migration)

[2019] AATA 530

PEDDITI (Migration) [2019] AATA 530 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krishnakanth Reddy PEDDITI

CASE NUMBER:  1731900

HOME AFFAIRS REFERENCE(S):           BCC2016/651538

MEMBER:Alan McMurran

DATE:8 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 08 March 2019 at 9:33am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – no approved nomination –Systems Administrator – no tribunal review of nomination refusal – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223 (2), rr 1.13A, 1.13B

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 Immigration and Border Protection on 27 November 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 33 year old Indian citizen who applied for the visa on 15 February 2016. 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 (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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Systems Administrator.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 (2) of Schedule 2 to the Regulations because the applicant was not the subject of a nomination approved by the Minister.

6. The applicant appeared before the Tribunal on 28 February 2019 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

8. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

   Nomination of a position

9. 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.

10. 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 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.

11. For the purposes of this review, the Tribunal has had access to the information on the Tribunals’ file and electronic records from the Department’s file, together with the submissions made at hearing by the applicant.

12. The information provided by the applicant includes:

    ·visa application dated 15 February 2016

    ·Department request for further information dated 28 July 2016

    ·a resume showing applicant’s employment commenced with the nominator, Python Technologies, on 23 April 2013 in the role of system administrator

    ·evidence of obtaining a Master of Information Technology from Latrobe University in 2012

    ·travel itinerary for the applicant’s marriage in India in early 2018

    ·written confirmation of employment by the nominator

    ·Department natural justice letter dated 24 October 2017 to the applicant requesting response and information by way of comment on the nomination refusal; the letter informs the applicant that the visa application cannot be approved

    ·decision record from the Department dated 27 November 2017 refusing the visa

    ·Tribunal letter dated 5 December 2018 requesting information. The Tribunal letter informs the applicant that it is a requirement for grant of the visa that the nomination for the position identified in the visa application has been approved;

    ·response to the Tribunal provided by the applicant on 17 December 2018 attaching documents, including:

    i.employment contract with the nominator dated 28 February 2013,

    ii.pay advice records for period from April 2013 to July 2014 (inclusive),

    iii.applicant’s taxation return for financial year ending 30 June 2017 showing income of $45,960,

    iv.tax return for financial year ending 30 June 2015 showing taxable income of $52,384,

    v.tax return for financial year ending 30 June 2014 showing taxable income of $52,329, and

    vi.tax return for financial year ending 30 June 2013 showing taxable income of $39,501;

    vii.ANZ bank statements and

    viii.covering email from the applicant attaching documents.

13. At the hearing, the Tribunal asked the applicant about his employment. The applicant said he was employed by one of the business owners, Ahmer Ismail, in 2013 after applying for the position online. He said he was granted a 457 visa for four years in April 2013, sponsored by Mr Ismail. He said he was employed with three or four others as a system administrator for Python Technologies. He said that in about 2016, Mr Ismail approached “all of us” who were on 457 visas to discuss applying for the 186 visa in the temporary residence transition stream. He said at the time there were about 10 people working for the nominator at Burwood in Sydney. The applicant said he accepted the invitation and made his application for the visa in February 2016 while in Australia and still working. He said that he found out in about November 2017 that his visa had been refused. He spoke to Mr Ismail who told him that he could seek to review the decision in the Tribunal. The applicant said that he did not realise at the time that his application could not succeed unless the nomination were approved, which meant it would have to be the subject of a successful review of that refusal in the Tribunal. He said that Mr Ismail said nothing about any review and that it was up to him (the applicant) to pursue the matter “if I wanted to”. The applicant said that he did not seek any advice at the time, and simply made his application. He said he did not withdraw his application even when he realised there was no nomination, because he wanted to live and work and remain in Australia and support his family back home. He said he had been here as a student since about 2010, studying first at Latrobe University in Melbourne, and then had come to Sydney where he had worked continuously for the nominator up until the refusal of his application.

14. The applicant repeated that at the time he lodged his review application in the Tribunal, he did not realise it could not succeed. He said he was encouraged to seek review by the nominator so that he could continue to live and work in Australia. He said that it was not until he received the Tribunal’s letter in December 2018 that he realised he could not be granted the visa and that his application could not succeed.

15. The Tribunal put to the applicant that the fact there was no approved nomination would be the reason or a part of the reason for affirming the decision under review and whether he wished to make any further comment. The applicant said he had nothing further to say and no other comment. He was asked if he was seeking any adjournment or an extension of time, to which he replied that he was not seeking any adjournment.

16. Having considered the material on the applicant’s file and from the Department’s file, and taking into account the discussion with the applicant at the hearing, the Tribunal is satisfied that the applicant was the person nominated in the application for approval by the nominator which nomination has been refused. The tribunal further finds that there is no approved nomination, and no evidence of any review of a refused nomination which is still being considered. The tribunal further finds that the applicant produced no other evidence or information about an approved nomination, further application in that regard, or any review which was being sought, other than in this application.

17. The Tribunal explained to the applicant that there was no discretion in the matter and that the criterion was mandatory. It would be futile to remit the matter to the Department as the criterion was not met and the Department could not grant the visa.

18. For these reasons, the Tribunal finds that cl.186.223 is not met.

19. 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.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.