Chhabra (Migration)

[2022] AATA 335

Chhabra (Migration) [2022] AATA 335 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aakash Chhabra

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1902829

HOME AFFAIRS REFERENCE(S):          BCC2018/1213000

MEMBER:Deputy President J.L Redfern PSM

DATE OF ORAL DECISION:  3 February 2022

DATE OF WRITTEN STATEMENT:         17 February 2022

PLACE OF DECISION:  Sydney

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

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 17 February 2022 at 10:18am

CATCHWORDS:

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – Direct Entry stream – Cook – whether subject of an approved nomination – decision under review remit with direction

LEGISLATION:

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Sch 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mr Aakash Chhabra. applied for the visa on 14 March 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, Mr Chhabra is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook. He was nominated for this position by Gaurish Pty Limited (Gaurish), which is a business established in 2012 that operated an Indian restaurant in Albury called the Indian Chimney.

5. The delegate refused to approve Gaurish’s application for approval of the nominated position on 21 December 2018 and because this was an essential requirement for the grant of the subclass 187 visa, also refused Mr Chhabra’s application for the visa. In short, the delegate found that Mr Chhabra did not meet the relevant criteria in cl 187.233 of Schedule 2 to the Regulations because Gaurish’s nomination for the position was not approved. The delegate refused the application on this basis alone and did not assess any of the other requirements for the visa.

6. Gaurish and Mr Chhabra applied for review of the respective decisions to this Tribunal. Because the application for the employer nomination and the related visa application are linked as part of a two-stage process, both applications were listed for hearing on the same day. The application for review made by Gaurish (being matter no. 1900699) was scheduled first and the hearing of Mr Chhabra’s review followed this hearing.

7. Mr Chhabra appeared before the Tribunal on 3 February 2022. He gave oral evidence and was represented in relation to the review by a lawyer, Karyn Anderson, being the same lawyer who also represented Gaurish. Extensive written evidence and submissions were provided prior to the hearing.

8. In the Gaurish proceedings, I found that Gaurish met all of the requirements for approval of the nomination in respect of Mr Chhabra. I therefore decided to set aside the decision refusing the nomination and substituted a decision approving the nomination.

9. The Tribunal gave its decision on the review at the conclusion of the hearing held on 3 February 2022. The following are the reasons for that decision, I have concluded that this matter should be remitted for reconsideration.

   RELEVANT LAW

10. The requirements for the grant of a regional sponsored migration visa are set out in Part 187 of Schedule 2 to 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. Mr Chhabra is seeking a visa in the Direct Entry stream.

11. Relevantly, the delegate was not satisfied Mr Chhabra met the requirements of cl 187.233 of Schedule 2 to the Regulations.

12. Clause 187.233 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. In this case, there is no dispute that these requirements have been met.

13. In addition, cl 187.233 also requires that:

    (1)the person who will employ the applicant is the person who made nomination (cl 187.233(2));

    (2)the nomination has been approved (cl 187.233(3)) and has not been subsequently withdrawn (cl 187.233(4));

    (3)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 (cl 187.233(4A));

    (4)the position is still available to the applicant (cl 187.233(5)); and

    (5)the visa application was made no more than six months after the nomination of the position was approved (cl 187.233(6)).

    CONSIDERATION

14. The threshold issue in the present case, being the basis for the refusal of the visa, is whether the criteria set out in cl 187.233(3) is satisfied. In the related application by Gaurish, I have approved the nomination for the position relating to Mr Chhabra. There is no evidence that the nomination has been subsequently withdrawn. I therefore find that the criteria in cls 187.233(3) and (4) are satisfied.

15. Because I have found that Mr Chhabra meets the relevant requirements for approval, I have assessed the balance of the criteria for cl 187.233.

16. I find that Gaurish is the company employing Mr Chhabra and that Gaurish made the nomination application. There is no dispute about either of these matters which are evidenced by the contracts of employment between Gaurish and Mr Chhabra, the most recent being dated 18 September 2021, the payroll records of Gaurish and the application lodged by Gaurish for the nomination. As such, I am satisfied that the criterion in cl 187.233(2) is met.

17. There is evidence of adverse information known to the Department about Gaurish but there is no evidence of any such information in respect of Mr Chhabra. The adverse information in relation to Gaurish is that the Department imposed a bar on Gaurish sponsoring individuals under work visas for a period of six months from 18 February 2020 because of concerns about compliance with the sponsorship obligations. The bar was based on the underpayment of one of its employees for the financial year ended 30 June 2019 and from 1 July 2019. At the hearing before the Tribunal of the Gaurish proceedings, Mr Kumar the director of Gaurish, explained that the circumstances that gave rise to the underpayment, which he said was inadvertent, the Award system can be complicated. Gaurish conceded the underpayment, corrected the breach and took action to ensure that this would not re-occur. By notice of decision dated 18 February 2020, the delegate found that Gaurish had failed to ensure one of its employees was paid under equivalent terms and conditions of employment but noted that Gaurish had been cooperative, had provided all required documentation within the legislated timeframes, had rectified the underpayment, had taken steps to ensure future compliance with the relevant Award and had complied with all other sponsorship obligations. The sanction of a six-month bar was considered to be appropriate in the circumstances of the case.

18. It appears there was a comprehensive review by Australian Border Force of Gaurish’s compliance with its sponsorship obligations. While the delegate found that there had been non-compliance, the non-compliance was narrow in scope and was quickly rectified when it was brought to the attention of the company. There is no reference in the findings and reasons of the delegate to any other breaches. The non-compliance could not be described as minor or trivial, but it is nonetheless in the lower range of seriousness, particularly given that Gaurish employed a number of visa holders and there is no question of non-compliance in respect of those employees.

19. In the Gaurish proceedings, I concluded that, on balance, it was reasonable for this adverse information to be disregarded for the purposes of the requirement in reg 5.19(4)(f). It was submitted, and I accepted, that in the circumstances of the case the one instance of non-compliance should be disregarded. My findings are set out in my reasons in matter no. 1900693 at [64] to [72]. This is also my view for the purposes of assessing compliance with cl 187.233(4A) of Schedule 2 to the Regulations. Accordingly, I am satisfied that the criterion in cl 187.233(4A) is met.

20. Having regard to the evidence of Mr Kumar, the director of Gaurish in the related nomination proceedings, I am satisfied that the role currently being undertaken by Mr Chhabra, which has been undertaken by him on a full time and part time basis over the past five years is still available to him. As such, the criterion in cl 187.233(5) is met.

21. Finally, the application for the visa is still current and was not made more than six months after the nomination for the position has been approved, in satisfaction of the criteria in cl 187.233(6).

22. In conclusion, I find that the requirements of cl 187.233 of Schedule 2 to the Regulations are met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·cl 187.233 of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President

    
    
    

    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.