1419142 (Migration)

[2016] AATA 3165

1419142 (Migration) [2016] AATA 3165 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Junxiong Ge
Mrs Jing Zheng

CASE NUMBER:  1419142

DIBP REFERENCE(S):  BCC2014/1646484

MEMBER:Brook Hely

DATE:28 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 January 2016 at 4:00pm

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 4 July 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 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 nominated position of Cafe or Restaurant Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.212 of Schedule 2 to the Regulations because the delegate was not satisfied that the position to which the application relates will provide to the applicant the employment referred to in the application for approval. Specifically, the delegate noted that the Department had separately approved a subclass 187 visa to another individual for the nominated position of Restaurant Manager and the delegate was not satisfied from the scale of the relevant restaurant (Golden Season Family Restaurant, hereinafter ‘the restaurant’) that it required an additional restaurant manager.

6. The applicants appeared before the Tribunal on 20 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from Yang (Grace) Fu, the current manager of the restaurant.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Overview of the applicant’s evidence

9. At the hearing, the applicant gave evidence that he was offered the position of Restaurant Manager after he responded to an ad on a Chinese website. He said that he then went to the restaurant in May 2014 and completed a two week trial. The recruitment or human resources manager of the restaurant, a person known as ‘JJ’, told him that the restaurant would sponsor him to get the visa. The applicant then returned to Melbourne and completed his studies. He confirmed that he has not worked at all since this time and has never actually worked in the restaurant (aside from his two week trial). He has also not been back to the restaurant and has had no further contact with ‘JJ’.

10. When asked how the position will provide him with the relevant information given that another person had apparently been granted the same visa to fill the role of restaurant manager, the applicant gave evidence that the restaurant is one of the two biggest in the area and can accommodate 242 customers. He submitted that one full-time manager would not be able to cope and may need another to help. The Tribunal noted its concern about the lack of evidence before it to show that the employer still required him in the role of restaurant manager or to show that the position was still available to him. The applicant said that he could provide further evidence or the Tribunal could contact the manager. The applicant also gave evidence regarding the scale of the restaurant, including the number of employees and the approximate daily turnover. He also gave evidence that, if he were to be employed, he could increase the restaurant’s profit by changing some of the dishes and doing more promotion.

11. During the hearing the Tribunal enquired about the option of contacting the owner of the restaurant for confirmation that the relevant position was still available to the applicant and that the restaurant required an additional restaurant manager. The applicant advised the Tribunal that he did not have the owner’s contact details and the owner does not work in the restaurant. The Tribunal stood the hearing down to enable the applicant and his agent to make enquiries to ascertain the owner’s contact details. The Tribunal was subsequently informed by the applicant’s agent that the owner could not be contacted. However, the current restaurant manager was working at the restaurant that day and could provide evidence.

12. The Tribunal then spoke with the current manager of the restaurant, Yang Fu. She gave evidence to the effect that she has a very full workload as restaurant manager and has complained to her boss that she requires an additional person in this role. She also confirmed that the restaurant is currently operating and is very busy.

13. The Tribunal notes that the applicant also provided a written submission in which he asserted that the total trading hours of the restaurant required more than one full-time manager. He also noted that the delegate should not have placed adverse weight on the fact that he lived in Box Hill as he was planning to move to Wagga Wagga (the location of the restaurant) once his visa was granted. He also raised other objections to the Department’s handling of his application and the implications for himself and his wife.

14. The applicant’s agent also provided written and oral submissions, which are set out in more detail below.

    Employment will be provided

15. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application.

16. The Tribunal acknowledges that it received supportive evidence from the current manager of the restaurant, Yang Fu. As noted above, she gave evidence that she has a very full workload as restaurant manager and has complained to her boss that she requires an additional person in this role. She also confirmed that the restaurant is currently operating and is very busy. The Tribunal also acknowledges that the applicant provided oral evidence on aspects of the restaurant’s operation, including the size of its workforce and its approximate turnover. The Tribunal also acknowledges that the applicant has provided evidence of completing a Diploma of Commerce at the Melbourne Institute of Business and Technology.

17. However, for the reasons that follow, the Tribunal is not satisfied that the nominated position will provide the applicant with the employment referred to in the related nomination application.

18. First, as put to the applicant in a 359A letter sent following the hearing, according to publicly available information from the Australian Securities & Investments Commission website, the applicant’s sponsoring employer, Everlasting Privileges Pty Ltd (ACN 097 235 133; ABN 33 097 735 133) was deregistered on 8 July 2015. As foreshadowed in that letter, the Tribunal finds from this information that the applicant’s sponsoring employer has been deregistered and therefore is no longer able to provide him with the relevant employment in the nominated position. In making this finding, the Tribunal notes that the applicant was directed to provide his comments or response to this information by 19 January 2016. To date, however, the Tribunal has not received any response or request for additional time.

19. Second, as flagged with the applicant at the hearing, the Tribunal is concerned about the lack of evidence to show that the relevant position remains available to the applicant. The Tribunal acknowledges that the applicant has provided a written offer of employment purportedly signed by the owner of the restaurant. However, no further evidence has been submitted to show that this position remains open to the applicant as at the time of decision. Importantly, no additional evidence from the owner of the business has been provided and, despite initially being listed as a witness for the Tribunal hearing, the owner ultimately did not attend and no contact details could be provided to enable the Tribunal to contact the owner directly. Additionally, despite the Tribunal allowing further time after the hearing for evidence from the owner to be provided, no further evidence was ultimately submitted or any reasonable explanation as to why not. To the extent that the agent submitted after the hearing that the owner had gone overseas for a holiday and therefore could not be contacted to provide further confirmation, the Tribunal does not accept this explanation. For the reasons set out in its s.359A letter, the Tribunal finds on the basis of Department records that the relevant Mr Li connected with this restaurant has not departed Australia since June 2001.

20. Third, as also flagged with the applicant at the hearing, the Tribunal is troubled by the absence of evidence to support the applicant’s claim that he completed a two week trial at the restaurant in or around May 2014. When asked about this issue at the hearing, the applicant said that he did not have any evidence of having completed this trial. He said that he had not kept any receipts or transactional records. And, when asked whether he had banking records from this time which might place him in Wagga Wagga, he claimed that he paid for everything in cash. In combination with its other concerns with this application, the Tribunal finds that the absence of any evidence to show that the applicant completed this two week trial (and noting also the applicant’s evidence that he has never worked at the restaurant since) casts further doubt over whether this position is currently still available to him.

21. Having regard to the above concerns, and on the very limited evidence before it, the Tribunal is not satisfied that the nominated position to which the application relates will provide to the applicant the employment referred to in the application for approval. Therefore, cl.187.212 is not met.

    Nomination of a position

22. Further or alternatively to the above, for applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination).  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. In addition, this criterion also requires, relevantly, that the position is still available to the applicant.

23. Having regard to the above concerns, and on the very limited evidence before it, the Tribunal is also not satisfied that the relevant position is still available to the applicant. Therefore, cl.187.233 is not met.

24. 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.

    Response to the agent’s submissions

25. As part of the present application to the Tribunal the applicant’s agent provided a written submission asserting that the delegate had acted outside her authority by ‘effectively assessing a criterion covered by Reg 5.19(4)(h)(ii)(B), namely “there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control”.’ It was asserted that assessing this criterion was outside the case officer’s authority in assessing the visa application.

26. Similarly, at the Tribunal hearing, the applicant’s agent emphasised that the relevant nomination had already been approved, which impliedly meant that the Department was satisfied that there was a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, as required by r.5.19(4)(h)(ii)(B). He also asserted that, in approving that nomination, the Department has presumably satisfied itself that there was a sufficient need to employ an additional Restaurant Manager. Moreover, given that there had been no cancellation of that nomination or revocation of the applicant’s employment contract, the Tribunal should accept that, relevantly, the requirements of cl.187.212 and cl.187.233(5) are met.

27. Following the hearing, the applicant’s agent provided a further written submission which reiterated the above general argument, noting in particular that the separate approval of another Restaurant Manager was information that was before the Department at the time of approving the present nomination application. The agent asserted that, if there was no longer satisfaction within the Department of the sponsor’s need to employ an additional Restaurant Manager, the appropriate course was to revoke the nomination approval rather than refuse the present visa application.

28. The Tribunal accepts that there is overlap between the nomination requirements under r.5.19(4)(h)(ii)(B) and the requirements of cl.187.212 and cl.187.233(5). However the Tribunal rejects the suggestion in the agent’s submission that it automatically follows that cl.187.212 and cl.187.233(5) are met by virtue of the relevant nomination being approved. Aside from the fact that these visa criteria are worded differently to r.5.19(4)(h)(ii)(B), which therefore suggests that they are not intended to have an identical meaning, such an interpretation would effectively leave cl.187.212 and cl.187.233 with no work to do. Rather, the Tribunal considers it incumbent upon itself to be independently satisfied that these visa requirements are met regardless of any decision made, or view taken of the evidence by, the Department in respect of the associated nomination application. For the reasons set out above, notwithstanding the Department’s approval of the relevant nomination, the Tribunal is not satisfied that the requirements of cl.187.212 and/or cl.187.233(5) are met in this case.

29. The Tribunal also rejects the agent’s submission that, if there were doubts about the genuineness of the position, the appropriate course was for the Department to revoke the nomination approval rather than for the applicant’s visa application to be refused. Whatever other options may be open to the Department, it remains the task of this Tribunal to review the applicant’s satisfaction of the requirements for this visa.

    Second visa applicant

30. There are no claims or evidence before the Tribunal to indicate that the second named applicant meets the primary criteria for the grant of the visa. Rather, her entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether she meets any additional visa criteria applicable. Given the Tribunal’s finding that the applicant does not meet the criteria for the grant of the visa, and given the lack of any claims or evidence to show that the second named applicant meets the primary criteria for the grant of the visa, it follows that she is also not entitled to the visa.

    DECISION

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

    Brook Hely
    Member