Baldaniya (Migration)

[2021] AATA 3936

Baldaniya (Migration) [2021] AATA 3936 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jentibhai Bhurabhai Baldaniya
Mrs Sangitaben Jentibhai Baldaniya
Master Taksh Jentibhai Baldaniya
Master Het Jentibhai Baldaniya

CASE NUMBER:  1836371

HOME AFFAIRS REFERENCE(S):          BCC2018/675746

MEMBER:Karen McNamara

DATE:11 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(3) of Schedule 2 to the Regulations.

Statement made on 11 October 2021 at 1:21pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application set aside on review – adverse information – applicant and wife’s part-time labour hire business of interest to state and federal authorities – response to tribunal’s invitation to comment – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.233(3), (4A)

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

2. The applicants applied for the visas on 9 February 2018. 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 (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant Mr Jentibhai Bhurabhai Baldaniya (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Farm Mechanic under the occupation of Diesel Motor Mechanic (ANZSCO 321212).

5. On 26 November 2018, the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, because on 18 October 2018, the nomination application lodged by Woodside Road Investments Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs.

6. The applicants applied to the Tribunal on 11 December 2018, for review of the delegate’s decision.

   ADVERSE INFORMATION – Invitation to comment

7. On 3 September 2021, the Tribunal wrote to the applicants under s 359A of the Act. The invitation sought comments from the applicants and stated as follows:

   ‘  I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   Department of Home Affairs records dated 25 June 2020 record that you have lodged a labour hire licencing application and are of interest to the Victorian Labour Hire Authority and Australian Border Force. The Department noted on 20 July 2018 that you are a Director of Hillston Workforce Pty Ltd. ASIC searches undertaken by the Tribunal confirm you and your partner, Sangitaben Jentibhai Baldaniya (dependent applicant) are Directors of this entity.

   Department records dated 1 March 2020, record suspected intermediary involvement in illegal Labour Hire with refused entries at Cairns Airport re: arranging farm work in Victoria and NSW (Hillston Farm).

   If the Tribunal relies on this information, it may not be satisfied that the nomination application meets the requirements of regulation 5.19(4) and the decision under review may be affirmed. As such, the Tribunal may then find that your subclass 187 visa application is not subject to an approved nomination and does not meet the requirements of cl.187.233(3).

   Additionally, the above information is relevant because cl.187.233(4A) requires 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.

   If the Tribunal relies on this information, it may find that you do not satisfy the requirements of cl.187.233(4A) and consequently the decision under review would be affirmed.’

8. The Tribunal sought the applicant’s response by 17 September 2021. On 17 September 2021, the applicant’s representative submitted the following response dated 16 September 2021 to the Tribunal;

   ‘…We write in response to your letter of 3 September advising that the Tribunal has received adverse information in relation to our Clients specifically:

   1. Department of Home Affairs records dated 25 June 2020 record that you have

   lodged a labour hire licencing application and are of interest to the Victorian

   Labour Hire Authority and Australian Border Force. The Department noted on

   20 July 2018 that you are a Director of Hillston Workforce Pty Ltd. ASIC

   searches undertaken by the Tribunal confirm you and your partner, Sangitaben

   Jentibhai Baldaniya (dependent applicant) are Directors of this entity.

   2. Department records dated 1 March 2020, record suspected intermediary

   involvement in illegal Labour Hire with refused entries at Cairns Airport re:

   arranging farm work in Victoria and NSW (Hillston Farm).

   Our Clients instruct that Mr Baldaniya and his wife, Sangitaben Baldaniya operate a Labour Hire business, known as Hillston Workforce Pty Ltd (“the Business”), which is based in Griffith NSW. We note that you have referred to Mrs Baldaniya as a dependent applicant, she is the secondary visa applicant, not a dependent. She holds a Bridging Visa without Conditions that allows her to work.

   Our Client further instructs that the business is part-time in nature and that it is based at their home and is operated out-of-hours so that it does not interfere with Mr Baldaniya’s full-time work at Woodside Road Investments. The business is operated in order to supplement the family income, and because it allows Mrs Baldaniya who does most of the administrative work to work from home and care for the children. It is Mr Baldaniya’s role to negotiate with the farmer or farmers taking on the workers and to check on their welfare once they are engaged.

   Mr Baldaniya advises that he undertakes the work on the Business once he completes his work with Woodside Investments. He has advised that he works 38 hours a week with Woodside and that the balance of the week is his and that it is during this time that he undertakes his role in the Business.

   Our Clients advise that the Business employs between 10-15 seasonal workers who are mainly Working Holiday Visa Holders and some Australian Citizens and Permanent Residents. Usually, the work is for 6 months per year. The small number of workers and the limited season ensures that the work commitment remains part-time.

   The family decided on this business option as it supplements the family income, allowed greater flexibility in relation to working hours than a paid part-time job would, and Mrs Baldaniya could work from home. We provide the following evidence to confirm that Mr Baldaniya is working fulltime with Woodside Road Investments:

   1. Commonwealth Bank Statements: wage payments from Woodside Road Investments have been highlighted (Attachment A)

   2. PAYG Statements from Woodside Road Investments showing our Client’s employment with the Company. (Attachment B)

   3. Wages records take from the Woodside Road Investments accounting software.

   (Attachment C)

   The Tribunal raises concerns in relation to our Client’s Business applying for a Labour Hire Licence in Victoria and asks for comment. Our Clients instruct that they did make an application for a Labour Hire Licence in Victoria, this occurred after an enquiry was made about the Business providing services in Swan Hill. Our Clients were unable to provide services as they were not licenced to do so, but the query acted as a catalyst and they decided to explore whether or not they could obtain a Victorian licence. The application was made and the licence has been granted without conditions (Attachment D). Notwithstanding the licence grant, the Business continues to only operate in Griffith and Hillston Local Government Areas, where Mr Baldaniya is able to personally check on the seasonal workers.

   We note that our Clients have been asked to comment on interest taken by the Victorian Labour Hire Authority and Australian Border Force in the application for a Victorian licence. In relation to the Victorian Labour Hire Authority’s interest, this is the issuing body for the licence and therefore has a legitimate interest in the licence application, which it subsequently granted.

   Our Clients instruct that they have no knowledge of any interest expressed in the licence application by Australian Border Force and have received no correspondence or advice from Australian Border Force in relation to the licence. Our Clients assume that if there was adverse information in the Australian Border Force’s possession that pertained to the licence application that the Victorian Government would have been made aware of same and not have issued a licence to the Business.

   The Tribunal has also requested comment on Department records from March 2020 that record suspected intermediary involvement in illegal labour hire that relates to refused entries at Cairns Airport. Our Clients were surprised by this request, as they have had no contact or advice from the DOHA in relation to the incident. Our Clients instruct that they have reviewed all emails from March 2020 until the present time and can find nothing from DOHA that relates to an incident at Cairns Airport. In addition, our Clients instruct that they have not received any phone contact nor correspondence from DOHA in relation to the incident.

   Based on the information provided in the Tribunal’s correspondence our Clients believe the incident may be related to discussions held in December 2020 with a Ms Alice Pakadi, a representative from a Queensland-based labour hire company who was in Griffith working at an onion farm. There were discussions about opportunities for workers in Griffith. Ms Pakadi advised that she organised workers from Papua New Guinea. Mr Baldaniya advised that if the people she brought over had the correct visas there would likely be work in Griffith. Ms Pakadi subsequently advised Mr Baldaniya that she would not be recruiting people from PNG because the borders were closed. This is the only incident that our Clients believe may have given rise to the “suspected intermediary involvement” in Cairns.

   Cairns is 2,500 kilometres away from Griffith, the Business does not operate in Queensland and does not undertake any recruitment activities in that State. Our Clients instruct that they had no knowledge of or involvement in bringing persons who were refused entry at Cairns Airport to Australia.

   Our Clients are adamant that in operating their Business they have done nothing that would result in a finding of adverse information. Again, we reiterate if there had been activities undertaken by our Clients or their Business that were inappropriate, then Victoria would not have granted the Business an unconditional Labour Hire Licence. The grant of the licence was made in March 2021 a full 12 months after the incident in Cairns. It appears from matters raised by the Tribunal that Border Force was aware of the Victorian licence application and yet it was still granted. Our Clients argue that this demonstrates that there was nothing of substance found by Border Force, and that it is therefore reasonable to disregard the adverse information that has been raised in this matter, particularly as it was only “suspected” and that Border Force never made contact with our Clients about the incident.

   Our Clients are resolute in their stance that operating a part time business is not interfering in Mr Baldaniya’s capacity to work full-time and that in operating their Business they have not taken any action that would result in an adverse finding.

   We trust that this response and the evidence supplied by our Client addresses the concerns the Tribunal has raised.’[1]

   [1] Transcribed as prepared and submitted by the representative

9. On 28 September 2021, the applicants represented by Mr Jentibhai Bhurabhai Baldaniya appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Russell Vardanega (the nominator) and Mrs Sunaina Vardanega in the related matter for the nomination review application (AAT Case file 1832634). The related matters were heard concurrently in a combined hearing.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

11. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

14. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. 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.

15. In addition, this criterion also requires that:

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

16. The nominating employer, Woodside Road Investments Pty Ltd applied to the Department for approval of a nomination in relation to the position of Farm Mechanic under the occupation of Diesel Motor Mechanic (ANZSCO 321212). That nomination was refused by the Department and consequently the applicants visa applications were refused.

17. Woodside Road Investments Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1832634). On 11 October 2021, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.187.233(3) of Schedule 2 to the Regulations.

18. The second named applicant (Mrs Sangitaben Jentibhai Baldaniya), third named applicant (Master Taksh Jentibhai Baldaniya) and fourth named applicant (Master Het Jentibhai Baldaniya), applied on the basis of being a member of the family unit of the first named applicant (Mr Jentibhai Bhurabhai Baldaniya). The applications by Mrs Sangitaben Jentibhai Baldaniya, Master Taksh Jentibhai Baldaniya and Master Het Jentibhai Baldaniya will be determined by reference to the outcome of Mr Jentibhai Bhurabhai Baldaniya’s application on remittal to the Department for consideration.

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

    DECISION

20. The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233(3) of Schedule 2 to the Regulations.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)in relation to which the declaration mentioned in paragraph 1114C (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 no more than 6 months after the Minister approved the nomination.