1508281 (Migration)

[2016] AATA 4443

1508281 (Migration) [2016] AATA 4443 (22 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sahil Kapoor

CASE NUMBER:  1508281

DIBP REFERENCE(S):  BCC2015/913726

MEMBER:Alison Mercer

DATE:22 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

·cl.887.213 of Schedule 2 to the Regulations.

Statement made on 22 September 2016 at 6:05pm

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 28 May 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 March 2015. Visa Class VB contains subclass 887, the criteria for which are set out in Part 887 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.

3. The delegate refused to grant the visa because the she found that the applicant did not satisfy cl.887.213 of Schedule 2 to the Regulations. This clause required that the applicant had, at the time of his visa application, worked full time for periods totalling at least 1 year while holding a specified visa and in a specified regional area. The delegate found that the documentary evidence provided by the applicant established that he had worked for his employer, Rock O’Cashel, for approximately 9 months only prior to making his visa application, as the payslips provided indicated he had worked there between 1 July 2013 and 31 March 2014, and this was consistent with the employment reference letter provided and the form 80 provided by the applicant in which he set out his employment dates.

4. The Tribunal received a review application from the applicant on 18 June 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Rahul Gautam, as his representative and authorised recipient for correspondence for the purposes of the review.

5. On 17 August 2016, the Tribunal wrote to the applicant via his agent to invite him to take part in a hearing on 2 September 2016.  He was requested to provide all documents he intended to rely upon 7 days before the hearing.

6. On 30 August 2016, the applicant’s agent advised that he and the applicant would attend the hearing.  On 31 August 2016, the Tribunal received a submission with supporting documents from the applicant’s agent.  In his submission, the applicant’s agent argued (in summary):

   ·the applicant came to Australia in 2007 to study hospitality, after completion of which he applied for, and was granted a subclass 485 (Skilled Graduate) visa in November 2010. While holding this visa, the applicant obtained state nomination for a subclass 487 (Skilled Regional Sponsored) visa. He applied for this visa on 15 January 2012, and it was granted on 30 March 2012, valid until 30 March 2015;

   ·during this period, the applicant moved to live in a regional area, Geelong in Victoria. He rented accommodation there from November 2012 and lived there for the duration of his subclass 487 visa.  He worked for a local business in Geelong, Rock O’Cashel, on a full-time basis from 1 July 2013 until 20 July 2014, therefore satisfying the requirement to have worked full-time in a regional area holding a specified visa for at least a total of 1 year;

   ·he provided documents that he thought were sufficient to establish that with his subclass 887 visa application, which was lodged on 23 March 2015 (a reference letter from his employer and a selection of payslips) but the delegate was not satisfied that this established at least 1 year of full-time employment with this employer;

   ·this was raised with him by the delegate, but while he was gathering additional documents to support his claimed period of employment with Rock O’Cashel, the delegate made a decision on his case; and

   ·the applicant had since provided this documentary evidence and it was provided with the agent’s submission to the Tribunal. It consisted of payslips showing that the applicant worked for Rock O’Cashel from 1 July 2013 to 4 August 2014 (and showing the hours worked), employment agreement between the applicant and Rock O’Cashel, work reference letter from Rock O’Cashel dated 23 March 2015 and PAYG summary and tax return for the applicant.

7. The supporting documents included:

   ·employment agreement between the applicant and Rock O’Cashel dated 24 June 2013, indicating that the applicant was to be employed in the position of Manager from 1 July 2013 on a full time basis.  The address given for the applicant is a suburb of Geelong, while it is stated that his place of work will be at the premises of Rock O’Cashel in Melbourne and Geelong;

   ·letter dated 25 March 2015 from Rock O’Cashel, Geelong in Victoria (postcode 3220), stating that the applicant had worked for this employer as a Marketing Manager from 1 July 2013 on a permanent, full-time basis;

   ·payroll advice for the applicant from Rock O’Cashel for the periods 1 July 2013 to 30 June 2014 and 1 July 2014 to 4 August 2014 showing he worked a 75 hour fortnight initially on an annual salary of $52,000 as a Bar Manager then as a Manager on a salary of $80,000 from 23 June 2014;

   ·PAYG summary statement for the applicant for the 2013/14 financial year showing his gross payments as $52,000 from Rock O’Cashel; and

   ·tax return for the applicant for the 2013/14 financial year confirming the above employment.

8. The review applicant appeared before the Tribunal on 2 September 2016 to give evidence and present arguments. The Tribunal also received submissions from the applicant’s agent.

9. The applicant told the Tribunal that he initially started working part time for Rock O’Cashel, a bar in Geelong, in 2012.  His employers were pleased with him and gave him more responsibility.  He oversaw renovations and construction that took place when his employers took over the bar, and he dealt with various sub-contractors during this process.  As a result, the owners, who were based in Melbourne, placed a lot of faith in him and offered him a full-time role in mid-2013.  Initially, they wanted him to manage the whole venue, which is why his employment contract of 1 July 2013 states his position is Manager, but his title was changed over time to Marketing Manager and then Bar Manager.  The Marketing Manager title was because he was essentially testing out the market in Geelong for the new owners.  In response to the Tribunal’s query, the applicant said that he ceased employment for Rock O’Cashel in August 2014 but could not remember the exact date.  When asked why he then put in his visa application form in March 2015 that he finished there in April 2014, the applicant said that the thought that he did this because around that time (April 2014), he did think he would be finishing his employment there.  However, he ultimately stayed on for a further few months.  The applicant’s agent submitted that there was a mistake by someone in his office who completed the form on behalf of the applicant – the staff member put in the finishing date to match the date of the last payslip provided by the applicant.  In response to the Tribunal asking why the applicant did not provide all his payslips to August 2014 with his visa application, but only those to April 2014, the applicant said that he provided those that he could find and thought that this would be sufficient, along with his other documents (such as his tax returns and PAYG statements for 2013/14) to establish that he was employed there for 12 months on a full time basis.  The Tribunal noted that documents such as PAYG statements and tax returns generally covered a full financial year but did not indicate when in that financial year employment may have ceased or commenced. The applicant said that he did not really turn his mind to it but once his visa was refused, he went back through his paperwork and found all of the relevant payslips, which he had now provided to the Tribunal.  When asked how he obtained the payslips for the period April to August 2014 if he did not have them at the time he lodged his visa application in March 2015, the applicant said that he knew the bookkeeper and had asked him to reprint them for him. 

10. At the conclusion of the hearing, the applicant undertook to get written confirmation from Rock O’Cashel that he had in fact worked there until August 2014, after the Tribunal observed that the reference letter from Rock O’Cashel from 25 March 2015 was ambiguous, as it implied he was still employed there as at that date, when his evidence to the Tribunal was that he had ceased employment by then.

11. On 6 September 2016, the applicant’s agent sent via email a letter of the same date from Mr Dilpal Singh, who states that he worked as the Accounts Manager for Rock O’Cashel and could verify that the applicant was a full time employee there in the period 1 July 2013 to 4 August 2014.

12. Subsequently, the applicant’s agent provided further documents via email on 22 September 2016, being:

    ·PAYG summary statement for the applicant for the financial year 2014/15 listing his gross payments as $14,000, his payer as Rock O’Cashel Pty Ltd (trading as Rock O’Cashel Bar) with the authorised person for the payer listed as Dilpal Singh; and

    ·the applicant’s 2014/15 tax return listing his employer as Rock O’Cashel Pty Ltd and his gross payments as $14,000.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant satisfies cl.887.213.

    Work in a regional area

15. Clause 887.213 requires that, at the time of visa application (in this case, 23 March 2015), the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

16. The Tribunal is satisfied that at the time of making the present visa application, the applicant held a Class VC subclass 487 (Skilled Regional Sponsored) visa granted to him on 30 March 2012 and valid until 30 March 2015, subject to condition 8539.  It is satisfied that this is a specified visa within the terms of cl.887.212.  The Tribunal is further satisfied that this visa falls within cl.887.211(3)(c), and that, for the purposes of this case, a specified regional area of Australia is a part of Australia that, at the time at which a visa of that kind was first granted to the applicant, was specified by the Minister in an instrument in writing for those purposes under Schedule 6A or 6D.  The relevant written instrument for this case is IMMI 12/015, which specifies that postcode 3220 in Victoria is a specified regional area for these purposes.

17. The form 1221 submitted by the applicant at the time of this visa application lists his employment with Rock O’Cashel in Geelong as ‘July 2103 to April 2014’ as Marketing Manager.  At that time he provided payslips from his employer covering the period 1 July 2013 to 31 March 2014 only, despite lodging his visa application in March 2015 and being requested after this date to provide further evidence of his period of employment.  His employer reference letter dated 23 March 2015, however, confirmed that his employment commenced on 1 July 2013 and suggests (by implication of using the present tense) that he was still employed there as at the date of the reference letter (March 2015).

18. At the hearing, the applicant and his agent maintained that the applicant had worked full time for Rock O’Cashel from 1 July 2013 to 4 August 2014, a period just over 12 months. They explained that the applicant believed that he had provided sufficient evidence with his visa application to corroborate this, but had not in fact provided all of his payslips, and that the date entered in the online application form of April 2014 was entered by the agent’s assistant based on the payslips provided by the applicant at that time.  Prior to the hearing, the applicant and his agent provided additional payslips to demonstrate that the applicant had in fact worked at Rock O’Cashel up until August 2014.

19. As discussed with the applicant and his agent at hearing, the Tribunal did not consider these to be determinative of the issue in and of themselves, and asked for additional proof of employment beyond April 2014 to August 2014. Following the hearing, the applicant provided a letter, dated 6 September 2016, from Mr Dilpal Singh, who claimed to be the former Accounts Manager for Rock O’Cashel, in which Mr Singh verifies that the applicant worked there full-time from 1 July 2013 to 4 August 2014.

20. The Tribunal would be reluctant to rely upon this letter without anything more to substantiate the applicant’s claim; however, the applicant has now provided his PAYG summary statement and tax return for 2014/15, both of which list his employer/payer as Rock O’Cashel and his gross earnings as $14,000, a low sum consistent with him not having worked there for the full financial year.  In addition, the authorised contact for Rock O’Cashel listed in the applicant’s 2014/15 PAY summary statement is Dilpal Singh.

21. Accordingly, the Tribunal gives weight to the above information and finds that the applicant worked full-time for over 12 months (at least 1 year) (1 July 2013 to 4 August 2014) at Rock O’Cashel, which based on its postcode and the relevant written instrument, the Tribunal finds was in a specified regional area for the purposes of cl.887.111. It is further satisfied that throughout this time, the applicant held a subclass 487 visa, which is a specified visa subclass for these purposes, as per cl.887.212.

22. Accordingly, the Tribunal finds that the applicant satisfies cl.887.213.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

24. The Tribunal remits the application for a Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

    ·cl.887.213.

    Alison Mercer
    Member