1505764 (Migration)

[2016] AATA 3168

1505764 (Migration) [2016] AATA 3168 (1 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ravdeep Kaur

MRT CASE NUMBER:  1505764

DIBP REFERENCE(S):  CLF2012/149864

TRIBUNAL MEMBER:  Carolyn Wilson

DATE:1 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 01 February 2016 at 12:34pm

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 13 April 2015 to refuse to grant the applicant an Employer Nomination (Residence) (Class BW) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 June 2012 on the basis of proposed employment in the position of Cook. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).

3. At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(4) of the Regulations, the relevant subclass in the present case is Subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to 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.

4. The delegate refused to grant the visa because the applicant did not meet cl.857.221 of Schedule 2 to the Regulations because the appointment did not continue to satisfy the criteria for approval.

5. The applicant appeared before the Tribunal on 6 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her sponsoring employer Mr Nitin Gathani.

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 at time of decision the position continues to meet the criteria for approval in r.5.19(4).

   Approval of appointment

8. Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in r.5.19(4) of the Regulations, and still be available to the applicant.

9. The applicant was nominated for the position of Cook  by Ravi Sharma and Nitin Gathani ATF the Indigo Unit Trust, trading as Saagaar Indian Restaurant.   The nomination was approved on 1 July 2014.

10. The applicant concedes that Saagaar Indian Restaurant ceased operation in December 2014.  At hearing she told the Tribunal she was ‘on holidays’ from work for 6 weeks in early 2015.  She gave evidence she was not on paid leave, and just stayed at home.  The Tribunal notes her payment summary for the financial year ending 30 June 2015 shows she was paid only $38,147 for the year, which is less than the salary advised in the nomination ($45,600).  It confirms her oral evidence that for a period in early 2015 there was no work available to her in the nominated position, and she was not paid for the leave she took.

11. The applicant claims that despite being on unpaid leave for a period in 2015, the nominator has continued to employ her since that time.  She said she did not always have full-time hours, but some weeks worked 34 or 36 hours. She was also working 25 hours a week in a childcare centre from 8am to 1pm   She said in 2015 she worked at a Nepalese restaurant, contracted out by the nominator, and then commenced work as a cook at the current restaurant, the New Delhi Curry House, in around August 2015.  This restaurant is operated by the nominator. In written submissions it was described that between March and June 2015 the employer entered into two contracts to manage two other restaurants, however these contracts were terminated.  They purchased the New Delhi Curry House with the proceeds of a pay-out from one of these contracts.

12. The applicant had difficulty describing how many people worked at the New Delhi Curry House, but eventually told the Tribunal there was a chef in the kitchen, then herself as the cook.  On weekends and at busier times they had waiting staff, but during the week she would also work out front to take orders.

13. The Tribunal is concerned by the breaks in employment for the applicant, and the lack of continual full-time employment in the position.  The nomination was lodged in June 2012 for a position in a restaurant that is no longer trading.  Whilst the applicant appears to be employed now by the nominator, there have recently been periods of unemployment or underemployment. Business activity statements provided after the hearing demonstrated the nominating business had modest sales that did not appear sufficient to employ a chef and cook, and operate at a profit with the other costs of running a restaurant.  The current restaurant operated by the nominator is a small business, with insufficient business during the week to even employ waiting staff.  Of concern also is whether the applicant is employed full-time as a Cook or whether her duties in fact also involve front of restaurant work.

14. The Tribunal has considered whether the nomination continues to satisfy r.5.19(4). In particular, the Tribunal has considered whether it can be satisfied the appointment will provide at least 2 years full-time work (r.5.19(4)(b)), and whether the employer has a need for a paid employee in the nominated position in the business (r.5.19(4)(a)).

15. The Tribunal acknowledges that it is looking at time of decision, and not whether in the past the employer has failed to provide full-time employment or failed to demonstrate it had a need for the position of Cook.  However, the Tribunal considers there has been a significant gap, between December 2014 and August 2015, when the employer could not demonstrate a need to employ a Cook full-time and a significant period in early 2015 where it was unable to provide a position for the applicant. The Tribunal notes from the payslips provided that the employer has continued to pay the applicant full-time and has signified a willingness to employ the applicant.  However, this is not the same as demonstrating a need for the position, or that it can continue to do so for at least two years.  The Tribunal acknowledges the nominator has commenced operating a new restaurant since August 2015, however the restaurant appears to have modest sales, low staff numbers, and after such a short period of operating the business the Tribunal is not satisfied it has been demonstrated that the position will offer full-time employment to the applicant for at least two years.

16. The Tribunal finds it is not satisfied that the appointment will provide at least two years full-time work, or that it has a need for the position of a full-time Cook. Therefore, the Tribunal finds the appointment does not continue to meet the criteria for approval in r.5.19(4). The Tribunal finds cl.857.221(c) is not met.

17. Therefore, cl.857.221 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 857 visa. No claims have been made in respect of the other visa in the class. As the applicant has not met the criteria for a Subclass 857 visa, the decision under review must be affirmed.

    DECISION

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

    Carolyn Wilson
    Member