Varma (Migration)

[2023] AATA 2122

Varma (Migration) [2023] AATA 2122 (7 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sanjay Sadhuram Varma
Mrs Shalini Sanjay Varma
Master Kanishk Sanjay Varma

REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)

CASE NUMBER:  1932960

HOME AFFAIRS REFERENCE(S):          BCC2019/2830014

MEMBER:P. Maishman

DATE:7 June 2023

PLACE OF DECISION:  Perth

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

Statement made on 09 June 2023 at 2:45pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Software Engineer– nomination refused– at the date of its decision the applicant is not the subject of an approved nomination– members of the family unit of the first named applicant – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.233, 186.311

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 on 30 October 2019 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 2 June 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 Direct Entry stream, to work in the position of Software Engineer (ANZSCO code 261313) nominated by Nextdot Solution Pty Ltd.

5. The delegate refused to grant the visas because the first-named applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because there was not an approved nomination for the position.

6. The applicants were represented in relation to the review.

7. On 10 May 2023 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The particulars of the information were:

   On 10 October 2019, the Tribunal received an application for review of the
   decision of the Department of Home Affairs to refuse a nomination in respect of
   Nextdot Solution Pty Ltd. On 25 November 2022 the Tribunal found it did not
   have jurisdiction to review the Department’s decision. Consequently, the
   decision made by the Department of Home Affairs on 23 September 2019 to
   refuse the nomination stands.  

   In relation to the primary visa applicant, Sanjay Sadhuram Varma

   This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination (cl 186.233(3)).
   …

   In relation to the secondary visa applicants, Mrs Varma, Master Varma

   The information is relevant to the review because cl 186.311 requires that the secondary applicants are members of a family unit of a person (the primary applicant) who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa. As Mr Varma would not satisfy the primary criteria this would mean that each of the secondary applicants would not satisfy the secondary criteria for the grant of their visas, namely cl 186.311.

8. On 17 May 2023 the applicant responded that he had no comment to make.

9. On 8 June 2023 the Tribunal wrote to the review applicants advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 22 June 2023. On 9 June 2023 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was from the applicant’s representative, Mr Derrick Peters, a registered migration agent authorised to act on behalf of all the applicants. This matter has therefore been determined on the evidence available to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is there is an approved nomination for the position.

    Nomination of a position

12. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. 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.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

14. On 1 June 2019 Nextdot Solution Pty Ltd (the nominator) applied for approval of its nomination of the position of Software Engineer (ANZSCO code 261313). A delegate for the Minister for Home Affairs refused that nomination on 23 September 2019. The Tribunal (differently constituted) determined it did not have jurisdiction to review the decision and notified that outcome on 25 November 2022. 

15. There is no information before the Tribunal that the relevant nomination has been approved.

16. The Tribunal finds the Minister has not approved the nomination as required by cl 186.233(3).

17. Therefore, cl 186.233 is not met.

18. The second and third named applicants made their applications on the basis of being members of the family unit of the first named (primary) applicant.

19. Clause 186.311 requires that the second and third named applicants are members of the family unit of a person who holds a Subclass 186 visa.

20. The primary applicant has not been granted a subclass 186 visa and is not the holder of that visa.

21. Accordingly, the second and third named applicants do not meet the requirements of cl 186.311.

22. The applicant has only sought to satisfy the criteria for a Subclass 186 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

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

    P. Maishman
    Member

    
    

    ATTACHMENT A

    186.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)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 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 not more than 6 months after the Minister approved the nomination.