Brar (Migration)

[2021] AATA 4687

Brar (Migration) [2021] AATA 4687 (4 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gagandeep Kaur Brar
Mr Harminder Singh Brar
Ms Livleen Kaur Brar

CASE NUMBER:  1825397

HOME AFFAIRS REFERENCE(S):          BCC2016/4120656

MEMBER:Alison Mercer

DATE:4 November 2021

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction in relation to the third applicant.

Statement made on 4 November 2021 at 10:48am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Café or Restaurant Manager – no approved nomination – tribunal affirmed nomination application – not the subject of an approved nomination– application of relevant legislation leads to unfair or unreasonable results – Ministerial intervention referral – decision under review affirmed – no jurisdiction in relation to the third applicant

LEGISLATION
Migration Act 1958, ss 65, 359, 349, 351
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

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 6 December 2016. 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO code 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because she was not the subject of an approved nomination by her Australian employer, Simgil Pty Ltd (trading as Kebab ‘n Curry Hut, Swan Hill). The delegate noted that the applicant’s employer’s nomination of her had been refused. The delegate therefore found that the applicant did not meet the Direct Entry stream criteria and had not made any claims against the other streams. She could not be granted a subclass 187 visa. The delegate also refused to grant the second and third named applicants (the applicant’s husband and daughter) subclass 187 visas on the basis that they did not meet the secondary criteria to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 31 August 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Dean Khaze, as their representative and authorised recipient for correspondence.

7. On 25 May 2021, the applicants provided tax assessment notices for the applicant from 2014/2015 to 2019/2020.

8. On 3 August 2021, the Tribunal wrote to the applicants, via their agent, to invite them pursuant to s.359A of the Act to respond to potentially adverse information held by the Tribunal. The Tribunal advised them that the particulars of the information were that:

   ·at the time the applicant made her visa application on 6 December 2016, she was nominated by her employer, Simgil Pty Ltd, as a Café or Restaurant Manager, and the second and third named applicants were included as members of her family unit;

   ·the Department rejected this application on 29 August 2018 because the delegate found that the applicant did not meet cl.187.233 of Schedule 2 to the Migration Regulations as she was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of her for the occupation of Café or Restaurant Manager had been rejected by the Department;

   • the delegate refused to grant the second and third named applicants subclass 187 visas as they did not meet the secondary visa criteria requiring them to be members of the family  unit of a person who held a subclass 187 visa;
   • the applicants applied to the Tribunal on 31 August 2018 for review of the Department’s decision to reject their subclass 187 visa applications;
   • the Tribunal’s records indicate that Simgil Pty Ltd lodged an application for

   review of the decision to refuse its nomination with the Tribunal but that the

   Tribunal made a decision on 30 July 2021 to affirm the refusal decision; and

   • accordingly, there is currently no approved nomination of the applicant by Simgil

   Pty Ltd, and the decision to refuse the nomination is not under review by the

   Tribunal.

9. The Tribunal advised that this information was relevant to the review because, subject to their comments or response, it indicated that:

   • the applicant was not the subject of an approved appointment made by the same

   employer who nominated her, as required by cl.187.233. This would be the

   reason (or part of the reason) for the Tribunal to affirm the decision under

   review, as it is a requirement that the primary applicant meets cl.187.233 at the

   time of decision;

   • the second and third named applicants were not family unit members of a person who held a subclass 187 visa; and
   • there was no evidence that the applicants met the criteria in the Temporary Residence Transition or Labour Agreement streams of the subclass 187 visa.

10. The Tribunal further noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.187.233 in respect of a subclass 187 visa application lodged prior to 18 March 2018. The Tribunal requested that the applicants’ comments or response be provided by 17 August 2021.

11. On 17 August 2021, the applicant provided the following by email:

    ·letter dated 16 August 2021 from Mr Satinder Pal Singh, director of the applicant’s employer, Simgil Pty Ltd, attesting that the applicant had worked as a Cook for the business from February 2018 to October 2019, after which she became the Restaurant Manager. He states that the applicant is a talented and hard worker who is essential to the business, particularly since COVID19;

    ·letter dated 16 August 2021 from the applicant confirming the above;

    ·positive Job Ready Skills Assessment issued to the applicant for the occupation of Chef issued by Trades Recognition Australia (TRA) on 6 November 2019; and

    ·provisional Skills Assessment issued to the applicant for the occupation of Chef issued by TRA in December 2018.

12. On 16 September 2021, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing to be held by videoconference on 1 October 2021.

13. On 21 September 2021, the applicants responded to indicate that the applicant would attend the hearing. The applicants also indicated that they wished the Tribunal to take evidence from Mr Satinder Pal Singh, director of Simgil Pty Ltd. They provided duplicates of the letters from Mr Singh and the applicant dated 16 August 2021, provided previously to the Tribunal.

14. The applicant appeared by videoconference before the Tribunal on 1 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satinder Pal Singh, the applicant’s employer and director of Simgil Pty Ltd.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

15. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicants, including the fact that the applicants are based in regional Victoria. 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 applicant was given a fair opportunity to give evidence and present arguments.   

16. The applicant said that she had been working as a Chef and Restaurant Manager for Simgil Pty Ltd (trading as Kebab ‘n Curry Hut in Swan Hill in regional Victoria) for 3 years and was devastated that its original nomination of her had been refused, and then the owner was not able to have a hearing with the Tribunal due to the late provision of documents by their migration agent in the related nomination review application. The applicant noted that none of this was her or the owner’s fault, and said that they had been let down by the former agent, who submitted documents after the specified date in the nomination case. The applicant said that she understood that the owner Mr Singh had provided all of the required documents to the agent to lodge within time, so they could not understand what had happened.

17. The applicant told the Tribunal that she originally came to Australia in July 2009 to study. At that time, she was married and her husband travelled with her, but they left their 5 month old daughter with her husband’s parents in India as the applicant knew that she would need to focus on studying and working in Australia. The applicant said that she never intended or anticipated that she would not be able to see her daughter for 10 years. She emphasised that all of her efforts studying and working in Australia were for her daughter’s future, so the refusal of her and her husband’s permanent residence visas was a great blow.

18. The applicant said that between 2009 and 2014, she completed Australian qualifications in Hospitality, Commercial Cookery, Business Management and Business Administration. In 2015, she was granted a subclass 457 visa on the basis of her employment as a Café or Restaurant Manager by an employer in Sydney. While there, she was offered another job by another Sydney business, and she lodged a new subclass 457 visa for that, but that employer’s nomination of her was refused. When this occurred, the applicant looked for alternative employment. She found an advertisement for a Café or Restaurant Manager position with Kebab ‘n Curry Hut and applied. She was successful, but it took some time for her husband and her to move from Sydney to Swan Hill as they had to find suitable accommodation and her husband had to find work. He eventually did so as a taxi driver, in which capacity he is still working in Swan Hill. The applicant told the Tribunal that although her employer lodged its nomination of her, and she lodged the subclass 187 visa application in late 2016, she did not commence work with Kebab ‘n Curry Hut until early 2018.  In response to the Tribunal’s query, the applicant said that this was because her agent at the time advised her that she could not commence employment until she was granted the subclass 187 visa.

19. When asked why she did commence work in March 2018, when she had not yet been granted a subclass 187 visa, the applicant said that the business really needed a Chef, as the existing Chef had left, and it was very difficult to recruit people in regional Victoria. She checked with her agent whether she could work in this capacity (as she was qualified in Commercial Cookery) and he said that she could. She therefore started as a Cook but then took on the management role as well. She was essentially both Cook and Restaurant Manager up until December 2020, when the owner hired a new Chef, whom the applicant was still helping to train. The applicant said that she still helped out with the cooking if things were very busy, such as if they had a function or during busy periods. In response to the Tribunal’s query, the applicant said that despite the various COVID19 related lockdowns that restricted the business from having people dine in for periods of 2020 and 2021, the takeaway side of the business had increased significantly. She noted that the business was the only Indian restaurant within an approximately 250km area and was very popular with the local Indian and non-Indian population, as well as with tourists, prior to the COVID19 related travel restrictions affecting regional tourism.

20. The applicant said that Mr Singh, the owner, had other family and work commitments and although he did help out occasionally, he relied heavily on her to run the business on his behalf, and she had done so with hard work and loyalty since 2018. She reiterated that she and her husband had made significant family sacrifices to be in Australia and for her to undertake this work, which they did for the sake of giving their daughter a better future in Australia. Their daughter was now 10 years old and was keen to rejoin her parents in Australia and start school here. The applicant reiterated that the refusal of the nomination and the visas had been devastating for her and her husband, and also very stressful for her employer.

21. The Tribunal also took evidence from the applicant’s employer, Mr Satinder Pal Singh. He confirmed that he took over the business in 2020 from his cousin, the original owner, as she and her family wished to move away from regional Victoria. Mr Singh confirmed that he is 26 years old and an Australian citizen. He told the Tribunal that he works full time for V Line as a bus driver and therefore relies heavily on the applicant to keep the business running smoothly. He confirmed that she is a highly experienced, loyal, hardworking and skilled employee who is able to perform both management and Cooking tasks. Mr Singh also reiterated that it was very difficult to recruit and retain staff for restaurants in regional Victoria. This was not just a problem for his business, but for the other pubs and restaurants in town. He confirmed his business is popular with locals and tourists alike. In response to the Tribunal’s query, Mr Singh said that besides the applicant and the new Chef, there are 3 other staff who work as wait staff and kitchen hand. They were all temporary residents, but this was not deliberate, Mr Singh said – he said that he employed anyone with suitable skills who wanted to work there, and he was not concerned about whether they were temporary or permanent residents. Given how difficult it was to get good staff, he was grateful to have the staff that he did, particularly the applicant. Mr Singh also expressed dismay that he was unable to attend a hearing on behalf of his business due to the agent’s failure to provide documents by the due date in that case, and said that he believed that he had provided all the documents necessary to substantiate that the business had a genuine ongoing need for the applicant as Restaurant Manager. He also added that he felt it was very unfair that this then severely affected the applicant’s visa application, and he asked the Tribunal to reconsider its decision to affirm the Department’s refusal of the business’ nomination. The Tribunal explained that it was legally unable to reopen its finalised decision in respect of the nomination application.

22. At the conclusion of the hearing, the Tribunal agreed to defer its decision until 15 October 2021 to enable the applicants to submit any further information that they wished the Tribunal to consider, particularly any submissions they wished to make as to why the Tribunal should refer their case for Ministerial intervention pursuant to s.351 of the Act.

23. On 11 October 2021, the Tribunal received a reference letter from Mr Jagandeep Singh, director of Swan Hill Taxis, in support of the second named applicant. Mr Singh states that the second named applicant is working for the business, which is the largest taxi fleet in the area that services Swan Hill, Mildura, and Bendigo, on a permanent, full time basis. Mr Singh further states that the second named applicant is hardworking and well regarded by the company and its customers, and that it would adversely impact the business if he were not able to continue working there.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

25. 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.

26. 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.

27. It is not disputed that in this case, Simgil Pty Ltd lodged a nomination of the applicant prior to 18 March 2018 but it was refused by the Department on 31 July 2018 and a review was lodged in respect of that decision with the Tribunal on 10 August 2018.  However, on 30 July 2021, the Tribunal affirmed the decision of the Department to refuse to approve Simgil Pty Ltd’s nomination of the applicant (see AAT/MRD 1823135 of 30 July 2021).

28. As discussed at the hearing, legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

29. Accordingly, the Tribunal must find that cl.187.233 is not met.

30. 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.

31. The Tribunal must also affirm the decision to refuse the second named applicant a subclass 187 visa as he cannot meet the secondary criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that he meets the primary visa criteria in his own right.

    No jurisdiction in relation to third named applicant

1. Although the applicants listed their daughter as the third named applicant in this review application, their evidence – which is consistent with the Department’s movement records – is that their daughter departed Australia in 2012 and thus was not in the migration zone at the time that the subclass 186 visa application was made, or at the time that the decision to refuse it was made, or at the time that the review application was lodged. Under these circumstances, the Tribunal has no jurisdiction in relation to her.

   Ministerial intervention

2. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal under s.349 of the Act another more favourable decision if he or she thinks that it is in the public interest to do so. The guidelines relating to the Minister’s discretionary power under s.351 are set out on the Department’s website: Ministerial intervention (homeaffairs.gov.au). The guidelines provide that cases that have one or more “unique or exceptional circumstances”, such as those described below, may be referred for possible consideration of the use of the Minister’s intervention powers, relevantly including:

   ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;

   ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person;

   ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia;

   ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case;

   ·where a person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside their control.

3. The guidelines also outline a number of scenarios in which it is considered inappropriate for the Minister to intervene; however, the Tribunal is satisfied that the applicants’ case does not fall within any of the listed examples.

4. The main submissions from the applicants can be summarised as follows:

   ·the applicants have been residing in Australia since 2009, some 12 years, where the applicant has successfully completed a number of courses and both the applicants have been working within the terms of their visas;

   ·the applicants have been separated from their daughter for most of this period due to their decision to have her remain in India with her grandparents. They wish to bring her to Australia now as all of their hard work and sacrifice in Australia has been to ensure that she would rejoin them and have greater opportunities in Australia than she would in India;

   ·the applicants are both valued employees of Australian businesses based in regional Victoria, and in particular, the applicant’s employer may have to close the restaurant if the applicant is unable to continue in her role there, which would jeopardise the employment of the other staff, who are also temporary residents. The owner is an Australian citizen;

   ·the refusal of the nomination application was outside the control of the applicant and it is unfair that she and her employer have been put in this position, which they believe is largely due to the failure of their former agent to provide information about the business to the Tribunal within the required time frame, resulting in the loss of the employer’s right to a hearing in respect of the nomination review application.

5. The Tribunal notes that the applicants do not have any family members in Australia who are Australian citizens or permanent residents. The applicant’s employer, Mr Singh, argued that his interests as an Australian citizen would be adversely affected if the applicant were to have to depart Australia, as he would most likely have to close the restaurant which he took over from his cousin in 2020. While the Tribunal acknowledges that this may result in some financial loss to Mr Singh, it notes that it would be open to him to sell the business and recoup some of his investment in it. It further notes that it is not his sole source of financial support, as his evidence at hearing was that he is a full time bus driver for V Line. As such, the Tribunal is not satisfied that the denial of permanent residence visas to the applicants would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen. Similarly, the Tribunal notes that the other employees of the restaurant are temporary residents, not Australian citizens or permanent residents. Without downplaying the potential adverse effect of the sale or closure of the restaurant on them, the Tribunal must have regard to the fact that the guidelines set out above emphasise significant detriment caused to an Australian citizen or permanent resident and/or to the interests of Australia itself.

6. The Tribunal acknowledges that both the applicants have provided evidence that they are regarded as valuable employees by their Australian employers, but it does not consider that this establishes that exceptional economic, scientific, cultural or other benefit would result from them being permitted to remain in Australia. In the Tribunal’s view, this is intended to encompass skills that are outside the ordinary.

7. There is no evidence before the Tribunal that the applicants cannot be returned to India due to circumstances outside their control.

8. In relation to whether there are compassionate circumstances regarding the age and/or health and/or psychological state of a person that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to the person, the Tribunal accepts that the applicants would find it devastating to now have to return to India, having spent the last 12 years in Australia separated from their family, including their young daughter. While the Tribunal notes that the separation of the applicants from their daughter was initially a matter of choice, it acknowledges that the length of separation has been substantial, and that the last 18 months of it has been outside their control, due to the global COVID19 pandemic and its associated travel restrictions. The Tribunal is not satisfied that there are any other compassionate circumstances associated with the applicants’ age or health.

9. In relation to whether this case involves circumstances not anticipated by relevant legislation, or clearly unintended consequences of legislation, or the application of relevant legislation leads to unfair or unreasonable results in a particular case, the Tribunal acknowledges that the applicant remains employed in her nominated occupation by her original employer, who is based in regional Victoria. The employer gave credible evidence of the difficulty of recruiting suitably skilled and experienced staff to regional Victoria, and the Tribunal is aware that this has been a problem prior to COVID19, and that there remain skills shortages in the hospitality industry throughout Australia which have been exacerbated by COVID19, particularly in regional Australia.  The Tribunal gives weight to Mr Singh’s evidence that the applicant has been a loyal and hardworking employee for 3 years and is integral to the operations of his business in regional Victoria.

10. The Tribunal acknowledges that it made a decision to affirm the associated nomination review application by Mr Singh’s company, Simgil Pty Ltd (trading as Kebab ‘n Curry Hut in Swan Hill), largely due to concerns regarding its financial capacity to employ the applicant on a full time basis for at least 2 years. At the time of the Tribunal’s decision in that case, it had not had the benefit of a hearing with the nominating employer as the employer had lost its hearing right due to the failure of its agent to respond to a s.359(2) letter sent by the Tribunal in that matter (or to seek an extension of time to do so within the prescribed period). However, having had the benefit of taking evidence from Mr Singh at the hearing in this matter, the Tribunal notes that it might have come to a different conclusion in the nomination review application had that evidence been before it. Accordingly, the Tribunal considers that this is a case in which the application of relevant legislation leads to unfair or unreasonable results, and considers that it is appropriate to refer this matter to the Minister for consideration pursuant to s.351 of the Act.

    DECISION

11. The Tribunal affirms the decision not to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

12. The Tribunal has no jurisdiction in relation to the third named applicant.

    Alison Mercer
    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

    (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.