CREATOR ENTERPRISES PTY LTD (Migration)

[2021] AATA 2028

CREATOR ENTERPRISES PTY LTD (Migration) [2021] AATA 2028 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  CREATOR ENTERPRISES PTY LTD

VISA APPLICANT:  Ms Oorjita Puttur (secondary visa applicant to primary visa applicant, Ms Deepmala Puttur)

CASE NUMBER:  1826401

HOME AFFAIRS REFERENCE(S):          BCC2017/4407960

MEMBER:Stavros Georgiadis

DATE:17 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal:

·     affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa;

·     remits the application for the visa to the Department to forward to the Minister to consider intervention in this case.

Statement made on 17 May 2021 at 1:20pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – position of Cook – member of the family unit – secondary visa applicant applied while offshore – two sponsors ceased trading – closure of the Subclass 457 program – referral for Ministerial intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 140GB, 351
Migration Regulations 1994, rr 2.72, 2.75; Schedule 2, cls 457.223, 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The secondary visa applicant applied for the visa on 22 November 2017 when she was offshore.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). One of the criteria to be satisfied at the time of decision is cl 457.223 which requires the primary visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl 457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl 457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor and against cl 457.321 in respect of the criteria to be satisfied by the secondary visa applicant for the grant of the visa. No claims have been made in respect of the other alternative streams in cl 457.223.

4. The delegate refused to grant the visa on 21 August 2018 on the basis that cl 457.321 was not met because the secondary visa applicant was not a member of the same family unit as the holder of a Subclass 457 visa being the primary visa applicant.  Therefore, the requirements for the 457 visa were not met.

5. The review applicant’s Mr Arvi M Manimozhi from Creator Enterprises Pty Ltd appeared before the Tribunal on 17 May 2021 to give evidence and provide submissions. The Tribunal also received oral evidence and submissions from Ms Deepmala Puttur, the primary visa applicant in the related AAT casefile 1815758 who is the secondary visa applicant’s parent, together with her spouse, Mr Bhushan Puttur.  The related matters were heard together in a combined hearing.

6. The review applicant was represented in relation to the review by its registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed but also that it is appropriate to remit the application for the visa to the Department to forward to the Minister to consider intervention in this particular case.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the secondary visa applicant meets the requirements of cl 457.321 for grant of the Subclass 457 visa. This in turn requires a consideration of whether the primary visa applicant meets the nomination approval requirement under cl 457.223(4)(a).

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the primary applicant by a standard business sponsor that has not ceased.

10. At the hearing the applicants conceded that there is no approved nomination in respect of the nominee for the Subclass 457 visa in respect of the position of Cook (ANZSCO 351411) and accordingly, the review application cannot succeed.  This is consistent with the written submission lodged with the Tribunal on 14 May 2021 in respect of the related matters that, in effect, seek referral for consideration of Ministerial intervention in this particular case.  The written submission set out as follows:

    … “Ms Puttur and her family members applied for subclass 457 visa[s] in November 2017 as she was sponsored by CREATOR ENTERPRISES PTY LTD for the position of a COOK.

    The nomination application for CREATOR ENTERPRISES PTY LTD was refused by the Department. Accordingly, Ms Puttur’s application for subclass 457 visa was also refused.

    CREATOR ENTERPRISES PTY LTD lodged a review application with the AAT for that refused nomination.

    Ms Puttur and secondary family members also lodged a review application with the AAT for that refused visa application. [The] visa application was refused under subclause 457.223(4), which states;

    457.223

    (4) The applicant meets the requirements of this subclause if:

    (a) each of the following applies:

    (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii) the approval of the nomination has not ceased under regulation 2.75

    The review application for the nominated position from CREATOR ENTERPRISES PTY LTD has recently been affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved. This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in Ms Puttur’s visa application is the subject of an approved nomination. This would mean that Ms Puttur will not satisfy a requirement for the grant of the visa.

    Daughter MISS OORJITA PUTTUR was overseas when the SC 457 visa application was lodged. When the visa application by refused by the delegate, MISS OORJITA PUTTUR was not able to be included in the review application of her parents.

    Sponsoring employer had the review right and hence the review application for MISS OORJITA PUTTUR was separately lodged by CREATOR ENTERPRISES PTY LTD under AAT Case ID 1826401.

    Both the review applications are being heard together.

    We acknowledge that Ms Deepmala Puttur, Mr Bhushan Puttur and Miss Oorjita Puttur are not the subject of an approved nomination made by Creator Enterprises Pty Ltd.

    Ms Deepmala Puttur was previously sponsored by Yummy Asian Cuisine for subclass 457 as a COOK and the Visa was granted for the period 22 November 2013 to 22 November 2017. Ms Puttur and her husband came to Australia in September 2008 as student visa holders and Ms Puttur being the primary visa holder. Ms Puttur completed various courses in Australia until 2013 such as Diploma in Tourism, Diploma of Hospitality (including AQF certificate III in Commercial Cookery) and Advanced Diploma of Hospitality. Ms Puttur then later joined Yummy Asian Cuisine and was accordingly granted SC 457 visa in November 2013.

    Ms Puttur was employed by Yummy Asian Cuisine from January 2014. Ms Puttur was notified by Yummy Asian Cuisine in December 2015 that they are ceasing trading because they have been placed into liquidation. Ms Puttur was just 1 month short of completing her 2 years duration to become eligible for subclass 186 visa application when her employment was terminated in December 2015 due to Yummy Asian Cuisine going into liquidation.

    Ms Puttur is an experienced COOK and then she started looking for a new employer. She was able to secure the employment at N & SP Pty Ltd trading as Delhi 77. The business lodged a nomination application for her in March 2016. Nomination application was refused on 17 May 2016 because SBS of the business had just ceased on 30 April 2016. Immigration Department also decided to cancel Ms Puttur’s visa in May 2016 for subclass 457 because she was not able to satisfy SC 457 visa condition of remaining employed with the original sponsor Yummy Asian Cuisine.

    Secondary visa holder’s ( Mr Puttur ) visa was also cancelled. Ms Puttur then requested review of decision to cancel subclass 457 visa from the AAT. N & SP Pty Ltd in the meantime lodged a new SBS application and nomination application for Ms Puttur. In September 2016, that nomination application was approved. Ms Puttur commenced employment with N & SP Pty Ltd as a COOK from September 2016. In February 2017, the AAT also decided to set aside Immigration Department’s decision to cancel Ms Puttur’s SC 457 visa. In about May 2017, N & SP Pty Ltd also told Ms Puttur that they are ceasing trading due to some financial difficulties. Ms Puttur’s visa was expiring in November 2017.

    Primary visa applicant was then able to secure an offer of employment for the position of a COOK from Creator Enterprises Pty Ltd and then accordingly lodged a new visa application for subclass 457. Their daughter Miss Oorjita Puttur was living with her grandparents in Mauritius at that time. However, she was also included in this SC 457 visa application.

    As the SC 457 visa application was refused and as daughter was not in Australia, Miss Oorjita Puttur was not able to be included in the parents AAT review application. Nominating employer Creator Enterprises Pty Ltd had to lodge a separate review application for Miss Oorjita Puttur. We understand that the primary applicant will need to satisfy cl 457.223(4) of the Migration Regulations.

    We would like to submit that extensive changes were made to the Subclass 457 visa program on 18 March 2018. The amending Regulations have repealed and replaced r.2.72 of the Regulations which is the main criteria for nominations relating to Subclass 457 visas. The amending Regulations have also repealed the Subclass 457 visa. Therefore, since introduction of the amending Regulations a new nomination application for approval in support of the applicants’ Subclass 457 visa application cannot be made any longer. Visa applicants do not understand how they have been so unlucky where the 2 separate nominating employers had shut their doors on the applicants by ceasing trading. Had the 2nd employer N&SP Pty Ltd also not ceased trading, Ms Puttur would have been able to secure a new SC 457 visa for herself and the family as the new nomination had just then been approved and her 457 visa cancellation had been set by the AAT in February 2007. Daughter Miss Oorjita Puttur has since been granted student visa SC 500 and she is undertaking HSC course of study in Australia. It is likely that the AAT will find that primary applicant will not meet the criteria in cl.457.223(4)(a) of Schedule 2 to the Regulations and, in those circumstances, the decision under review is likely to be affirmed. Accordingly, secondary applicants will also likely not satisfy the visa grant criteria.

    In accordance with the amending Regulations, it is now no longer possible for the Company to lodge a nomination to facilitate grant of a Subclass 457 visa to the applicants. It may be possible for the applicants to go off-shore to lodge a new Subclass 482 visa application following lodgement of a new nomination by the Creator Enterprises Pty Ltd. However, given the COVID19 pandemic impact, it will be extremely expensive and unsafe for the applicants to travel offshore to their country, wait and then highly likely not be permitted to return back due to travel restrictions in place. They will also have to undertake considerable expenses in paying for higher airfares, accommodation costs overseas, payment of rent in Australia to maintain residence for self and their daughter and the expensive quarantine costs to name a few.

    Ms Puttur is an Australian qualified and experienced COOK. Having worked as a COOK for various employer, Ms Puttur has good knowledge of Australian Restaurant industry. There is a shortage of skilled Hospitality personnel in the Australian Hospitality industry and the businesses are unsuccessfully trying to find the skilled people from the local market. Ms Puttur and her husband have been residing in Australia since September 2008. Mr Bhushan Puttur has since been working as a self employed person in the Farmers market. They have formed deep ties to the Australia society and community through employment, business, educational, cultural and personal activities.

    Immigration Department has recently announced that the government is now removing the existing 40 hours per fortnight work limitation cap for student visa holders employed in hospitality and tourism industry.

    Minister Alex Hawke has said that the move will help fill staffing gaps in these sectors and support Australia's economy recovery.

    This will make a significant change for those employers who are facing employees shortages. This will also boost the hospitality and tourism sectors. International border closure due to COVID19 pandemic has kept away the new arrivals in Australia, it has also starved tourism and hospitality sector of regular supply of staff who fill positions in the hospitality and tourism sector. The following link from Department of Home Affairs website also provides this important information about Temporary relaxation of working hours for student visa holders. Hospitality sector has also been included in critical sector due to staff shortages.

    The information states that: To support the supply of certain services during the COVID-19 pandemic, the Department of Home Affairs and Australian Border Force will take a flexible approach to student visa holders, including those working beyond their usual work limitations, but only in the sectors below. You can work for more than 40 hours a fortnight if you are employed:

    • by an aged care Approved Provider or Commonwealth-funded aged care service provider with a RACS ID or a NAPS ID, before 8 September 2020

    • by a registered National Disability Insurance Scheme provider

    • enrolled in a health care related course and you are supporting the health effort against COVID-19, as directed by health officials

    • in the agriculture sector

    • in the tourism and hospitality sector

    Ms Puttur’s local education from Australia complemented with her local Australian experience will be of no use to Australia if she has to depart from Australia due to visa refusal.

    Ms Puttur & her husband have spent in excess of $500,000 towards her education & household living cost since 2008. When they came to Australis in 2008, they left their only child ( Miss Oorjita Puttur ) with paternal Grandparents in Mauritius and at that time the child was only 6 years old. Applicants will like to request the Tribunal for referral the case to the Minister for consideration of using the Minister’s powers under s 351 of the Migration Act because of their unique or special circumstances. …”

11. The Tribunal accepts the applicant’s oral evidence that there is no approved nomination in respect of Ms Deepmala Puttur for the nominated position of Cook. It follows that the primary visa applicant does not meet cl 457.223(4)(a) for the grant of the Subclass 457 visa. As the primary visa applicant does not hold a Subclass 457 visa, the secondary visa applicant is therefore, not a member of the family unit of a person who is the holder of a Subclass 457 visa: cl 457.321.

12. The Tribunal finds that the secondary applicant is not a member of the family unit of another person who holds a Subclass 457 visa having satisfied the primary criteria for it.

13. Consequently, the applicant does not meet cl 457.321.

14. For these reasons, the requirements of cl 457.321 are not met.

15. From the above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl 457.223 and there is no evidence that the visa applicants would be able to satisfy the specific criteria for those streams.

    Ministerial consideration

16. The Tribunal has carefully considered the written submissions and evidence in respect of this and the related applications for Subclass 457 visas by the related primary and secondary applicants. The Tribunal considers that given the particular circumstances of this case, it is appropriate to refer the matter to the Minister via the Department for consideration of Ministerial intervention.

    DECISION

17. The Tribunal:

    ·affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa;

    • remits the application for the visa to the Department to forward to the Minister to consider intervention in this case.

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.