1418148 (Migration)

[2015] AATA 3310

1418148 (Migration) [2015] AATA 3310 (13 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aakash Sharma

CASE NUMBER:  1418148

DIBP REFERENCE(S):  CLF2011/174492 CLF2012/138279

MEMBER:Karen Synon

DATE:13 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Employer Nomination (Residence) (Class BW) visa.

Statement made on 13 August 2015 at 1:33pm

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 on 20 October 2014 to refuse to grant the applicant a Employer Nomination (Residence) (Class BW) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 June 2012. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.856.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy PIC 4020.

3. The applicant applied for review of the primary decision on 6 November 2014 and provided a copy of the department’s decision to the Tribunal.

4. The applicant appeared before the Tribunal on 13 August 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Joe Scerri and Mr Dave Macalister.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

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 this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.856.223 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2B) and (2BA).

8. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4).  However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B).  PIC 4020 is extracted in the attachment to this decision.

   Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?

9. Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.  This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2AA).  

10. With his application for review the applicant provided a copy of a statement he made to the department which is dated 3 October 2014.  In this he relevantly stated that he had not provided any misleading or false information in relation to this visa or past visa applications and that he and his wife have resided at the same address in Glenroy since 18 June 2013.

11. Relevant to this provision at the hearing the applicant said that he had been initially in Australia on a student visa and applied for and was granted a 485 visa.  He was refused an 885 visa and lodged the visa which is the subject of this review.

12. The Tribunal, in accordance with the provisions of s.359AA, gave information to the applicant which would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review.  The applicant was advised that the Tribunal had information before it that he had applied for a Skilled (Residence) (Class VB) visa on 29 June 2011.  This visa was refused by the Department on 16 October 2012 because he did not satisfy cl.885.224(a) because he did not meet PIC 4020.  He applied for review to the Tribunal on 29 October 2012 but withdrew this application for review on 30 June 2015.  The it in making its decision, it may be the reason or part of the reason for affirming the decision under review.  The Tribunal explained to the applicant that he had three options in which to respond or comment on this information.  After discussion with his representative he decided to respond at the hearing without an adjournment. 

13. The applicant explained that PIC 4020 was refused because of the relationship from his wife’s past relationship.  When he got the refusal from his wife’s 485, because his hearing was combined with hers, he was in shock and thought that because she was on his 885 (application) it may be refused.  He became depressed and submitted a withdrawal form to the Tribunal.  Later on the same day he contacted the Tribunal and asked if he could take back his withdrawal but was told he could not.  He wondered if the fact that he had withdrawn his file from the Tribunal stands against him.  Later in the hearing the applicant repeated that he was depressed and his only hope is the 856.  He said with compelling circumstances he hopes to get PIC 4020 waived.  The applicant agreed he had previously had a finding of PIC 4020 made against him in relation to his 885 visa.  He said the PIC 4020 finding was made in October 2012 and will finish in October 2016; only two months away.  The applicant reiterated that he did not give anything bogus or do anything wrong and his relationship is genuine; they are still together.  While he understood he had a big problem with his wife’s past, the 856 visa is his last hope.  He is fighting to the last and after so many refusals and failures he just hopes he can stay in the country.

14. The applicant said it is very important for him to stay here, he has had so many ups and downs, he is skilled and it will be a waste if he goes back to India.  His cooking skills have been developed in western style restaurants.  This visa is his last hope and the fact that his boss, who is such a busy person running five restaurants, took the time to attend and speak for him, demonstrates how important he is to his employer.  The applicant reiterated that he did not do anything wrong but still got caught and this is causing him ongoing fears.

15. The representative noted that the applicant had recently had his skills reassessed by Victoria University.  The Tribunal sighted a successful skills assessment for the occupation of Cook (351411) dated to February 2015.

16. Based on the evidence before it, the Tribunal finds that the applicant has been refused a visa in the relevant period and the refusal was because of a failure to satisfy PIC 4020 (1).  Consequently, PIC 4020 (2) is not met.

    Should the requirements of cl.4020(1) or (2) be waived?

17. The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of  an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.

18. Prior to the hearing 2 letters of support in relation to the applicant’s employment were received from Mr Joseph Scerri, Owner/Director of the JMS Hospitality and Mr David Macalister, General Manager of Anglers Tavern.  Their oral evidence at the hearing generally accorded with their written evidence.

19. Mr Joe Scerri, the owner of ‘JMS Hospitality & Management’ attended the hearing to give witness evidence in support of the applicant.  He is an Australian citizen and owns his company 100%.  He said the applicant played a very important role in the structure of his business and they employ a large number of Australian citizens.  He said his group employs about 430 people and all would be Australian citizens or permanent residents except the applicant.  Anglers Tavern, where the applicant works, employs about 200 people.  Mr Scerri said the applicant is in a niche position adding a unique aspect his to business and would be very hard to replace.  It has been very hard over many years to fill similar positions.  The applicant has developed both menus and methodology and teaches other staff.  Mr Scerri said this has developed to an extent that they now have Intellectual Property over how they operate.  ‘JMS Hospitality & Management’ operates six venues in Melbourne including the Dorset Gardens Hotel, Roxburgh Park Hotel, Diamond Creek Tavern, the Elephant Bar in St Kilda, the Nixon Hotel at Docklands and Anglers Tavern.  In all he estimates that he employs 30 chefs and 18 cooks across these 6 venues.  The applicant’s position is as a second chef reporting to the Head Chef and Venue Manager.  A ballpark estimate of the group’s turnover in the last year is $45 million and $8-9 million at Anglers Tavern.  The largest venue is the Dorset Gardens Hotel.  The applicant is very important to the business and to Mr Scerri personally due to his ability to interact with junior staff and his ability to create, monitor and maintain the kitchen.  He is an integral cog in the workings of the business.  Mr Scerri hopes the Tribunal considers these factors and grants the waiver as the applicant is a hard worker and will be a credit to Australia.  He helps many Australians maintain employment and an Australian owned company further succeed.

20. Mr David Macalister, the Venue Manager at Anglers Tavern attended the hearing to give witness evidence in support of the applicant.  He has worked with the applicant for many years and seen him go through much.  He said not many people can handle high volumes and still keep the standard of food high.  The applicant takes control of the kitchen when the Head Chef is away.  His formal position is Sous Chef and he is part of a small core within the kitchen.  If he is away they rely on this small core to manage and get through.  The staff go to the applicant and the Head Chef for any issues.  If the Head Chef is not present in the kitchen the applicant is in charge.  The applicant reports firstly to the Head Chef and then to him.  He said he has known the applicant since they both worked at the Transport Bar and he was involved in setting up the Feddish Bar at Federation Square.  The applicant was already employed at the Transport Bar when he commenced with the group and he later negotiated for him to work at Anglers Tavern.  Mr Macalister said the applicant is very reliable and while theirs is a professional relationship, it is a good one.

21. The Tribunal has carefully considered the evidence provided in relation to the waiver provisions.  In particular the Tribunal notes and accepts Mr Scerri’s evidence that it is difficult to find qualified chefs of the applicant’s experience and that he is very important to the business not only in terms of his skills but also in relation to his ability to create, monitor and maintain the kitchen and relate to and train junior staff and that he believes it would be a tremendous loss to the company if it were to lose him.  Mr Macalister’s evidence included that the loss of the applicant would be detrimental to the operational aspects of the business and their team over all and that he has the skills to both handle a high volume kitchen and keep the food standard high and that he is a member of the Angler’s senior management team and a leader in the kitchen.

22. The Tribunal acknowledges and accepts that the applicant is clearly a highly valued and important member of the staff team of JMS Hospitality & Management and specifically in his role as Sous Chef at Chef at Anglers Tavern.  However, it is not satisfied, on the evidence before it, that losing the applicant “will have a drastic affect (sic) on the business in terms of sales and the impact of food quality and service thus potentially leading to a bad reputation” as Mr Scerri wrote in his letter especially given his oral evidence that his business operates over six venues and employs some 430 people with 48 senior cooking staff, comprised of 30 chefs and 18 cooks and his estimate of the group’s turnover last year as $45 million.  Given the size and complexity of this business the Tribunal is not satisfied that losing one of its 30 employed chefs, whatever his personal and professional skills, constitutes compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen justifying the granting of the visa.

23. Therefore the requirements of cl.4020 (2) should not be waived.

24. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.856.223.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Employer Nomination (Residence) (Class BW) visa.

    Karen Synon
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …