Dharamvir (Migration)

[2022] AATA 2921

Dharamvir (Migration) [2022] AATA 2921 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr  Dharamvir

Mrs Ritu Devi

Mr Ryan Gungash

REPRESENTATIVE:  Mr Rashpal Sekhon (MARN: 1574276)

CASE NUMBER:  1901171

HOME AFFAIRS REFERENCE(S):          BCC2018/5730799

MEMBER:Penelope Hunter

DATE:4 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal:

·      affirms the decision not to grant the first named applicant and second named applicant  Temporary Skill Shortage (Class GK) visa.

·      Finds that it has no jurisdiction in respect of the third named applicant.

Statement made on 04 July 2022 at 11:47am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Cook – genuine temporary visitor – application for permanent visa – intention to reside permanently in Australia – extensive work experience – applicant ceased working for the nominating employer – dependent child now an Australian citizen – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.222; r 5.19

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 on 2 January 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 19 December 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream.

3. In this case, the primary visa applicant, Mr Dharamvir (the applicant), is seeking the visa in the Short-term stream to work in the nominated occupation of Cook (ANZSCO 351411) for his nominating employer Nannak Victoria Pty  The second and third named applicants are the wife and son of the applicant, and have sought the visa has members of his family unit. They thus only need to satisfy the secondary criteria.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.222 of Schedule 2 to the Regulations because they were not satisfied that the applicant was a genuine applicant for entry and stay as a short-term visa holder.

5. The applicant appeared before the Tribunal on 10 May 2022 via MS Teams video to give evidence and present arguments. The hearing was scheduled during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants being situate in Western Australia. 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 video. The applicants were represented in relation to the review, and their representative also participated in the hearing.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue before the delegate was whether the applicant satisfies cl 482.222 of Schedule 2 to the Regulations and is a genuine short-term applicant.

   Genuine short term applicant

8. Clause 482.222 requires as follows:

   The applicant is a genuine applicant for entry and stay as a short term visa holder because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)       the applicant’s circumstances; and

   (ii)      the applicant’s immigration history; and

   (iii)     any other relevant matter; and

   (b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:

   (i)       the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and

   (ii)      the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant genuinely intend to stay temporarily?

9. For the applicant to meet cl 482.222(a), the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances and immigration history, and any other relevant matter.

10. In support of the applicant’s visa application, the applicant provided to the Department:

    i.Educational certificates for the applicant’s Diploma of Hospitality; Certificate III in Hospitality (Commercial Cookery); and Certificate IV in Commercial Cookery obtained in Australia.

    ii.Employment references from Rajkumar Lad, Director of Rul’s Pty Limited, dated 7 May 2018 and Sharon Munnelly, General Manager of J.B. O’Reilly’s (undated).

    iii.Passport details for the applicant and his wife and child.

    iv.A Marriage certificate for the applicant and his wife.

    v.Australian Federal Police and Overseas Police certificates for the applicant and his wife.

    vi.Birth Certificate for the applicant’s child.

    vii.Pearson Test of English results for the applicant, dated 9 March 2018.

    viii.Skills assessment result from VETASSESS for the applicant, dated 17 September 2018.

    ix.PAYG Summaries for the year ending June 30, 2018 (taxable income: $36,179); 2017 (taxable income: $52,718); and 2016 (taxable income: $5,168).

    x.Application for Bridging visa C, requesting permission to work due to financial hardship submitted 19 December 2018. The request contained recent bank statements from the Commonwealth Bank and ANZ along with rental statements from LJ Hooker.

11. On 9 May 2022, the Tribunal received pre-hearing submissions from the applicant and copies of payslips for the applicant from the Punjabi Kitchen, copies of payslips for the second named applicant from Curtin Heritage Living and confirmation of enrolment for the third named applicant from Ursual Frayne Catholic College.

12. At the hearing, the applicant provided the following information regarding his immigration history, and this confirmed information contained in his Departmental movement records:

    i.The applicant first arrived in Australia in October 2007 as the holder of a Student visa.

    ii.In December 2009 he applied for a Subclass 886 Skilled Permanent onshore visa. This was refused by the Department.

    iii.The applicant unsuccessfully sought a review of the refusal decision before the Migration Review Tribunal and the Federal Circuit Court, when the matter was dismissed in 2016. The applicant claimed that the matter was dismissed because his previous representative did not inform him of the hearing date.

    iv.The applicant departed Australia for three days and applied for a Subclass 457 visa which was granted on 13 May 2016 valid until 4 November 2017.

    v.The applicant applied for a further Subclass 457 on 1 November 2018, this was withdrawn in October 2018.

    vi.On 19 December 2018, the applicant applied for the visa under review.

13. It was conceded that the applicant had been in Australia for 15 years since his initial arrival in 2007. The Tribunal notes that not only has the applicant been in Australia for this extended time but that for over seven years he maintained proceedings through various forums seeking a permanent visa. On the evidence of the applicant the application for a permanent visa was only finalised as the application was dismissed without the knowledge of the applicant for non-appearance, not because he withdrew or abandoned his claim for a permanent visa. The Tribunal considered on this evidence that there was a clear past intention of the applicant to reside permanently in Australia. When asked to comment on this pattern, the applicant said that he had so many stresses in the past and recently he was thinking of opening a restaurant in his home state of Haryana once he obtained more skills as a cook, to be near his parents.

14. The Tribunal also discussed with the applicant his past employment history.  He had submitted a reference from JB O’Reilly’s that he was working part-time as a cook from 2007 to 2009,  also 2009 the position for which he was nominated in 2009 for the Subclass 886 Skilled Permanent onshore visa was a cook. Since then the applicant has provided a reference that he also worked for two years as a cook between 2016 and 2018 for Rul’s Pty Ltd, and subsequently with his nominating employer. It appeared to the Tribunal that the applicant had obtained sufficient experience to embark on the project of opening his own restaurant if that was his genuine intention. The Tribunal was not persuaded as to the value or necessity of further work experience to the applicant.

15. Additionally, the applicant told the Tribunal at the hearing that he was no longer working for his nominating employer. The applicant explained that he was not satisfied with the conditions of employment with his nominator, in particular his employer only gave him part-time shifts and then said he could not afford to engage him due to the pandemic. The applicant also identified that the position situated in Denmark was 450 kilometres from his residence in Perth. Since ending his relationship with Nannak Victoria Pty Ltd he had worked for two years as an Uber driver, a fact further calling into question for the Tribunal the claim that applicant wished to remain onshore temporarily to obtain professional experience as a cook. Since March 2022, he had been working for a new restaurant, the Punjabi Kitchen as a cook. The applicant claimed his current employer was begging him to stay because he needed staff and for this reason the applicant said he also required the visa grant for a further 2 to 3 years.

16. The Tribunal questioned the applicant as to whether the nominated position with Nannak Victoria Pty Ltd was genuinely still open to him and whether he still had an intention to perform the occupation for nominator and invited the applicant to comment,  and he declined. The Tribunal identified to the applicant that this was also a requirement of the visa grant. In response the Tribunal received submissions that the Department had been informed that the applicant had left employment with the nominator. Following the hearing the Tribunal received a copy of a letter addressed to the Department from Nannak Victoria Pty Ltd advising of the applicant’s termination due to downturn effective as at 27 January 2021. A submission was provided to the Tribunal that if granted the visa the applicant would have three months to obtain further employment and in this instance, he could substitute his current employer as his nominator. Later in the hearing it was indicated to the Tribunal that the applicant may be able to recommence employment with the nominating employer if he asked, and the applicant requested leave to submit further evidence. On 16 May 2022, the applicant’s representative informed the Tribunal that the nominating employer, Nannak Victoria Pty Ltd had agreed to re-hire the applicant commencing 6 June 2022. A letter from Nannak Victoria Pty Ltd, signed by their Managing Director, confirming the offer accompanied the representative’s submissions. The Tribunal accepts that the applicant has some evidence that a genuine position may again now be available with his nominator. It also weighs this with the fact that the nominated position is located considerable distance from the applicant’s home and family and his earlier evidence about concerns related to conditions and payment. While the applicant may genuinely intend to perform the occupation for his nominator, the Tribunal has concerns regarding the value of the position to the applicant in terms of remuneration and experience as opposed to a mechanism for maintaining residence in Australia.

17. Under questioning from the Tribunal the applicant also disclosed that his son, the third named applicant was now an Australian citizen. The third named applicant was currently in year eight in high school and the applicant said that he would like to stay in Australia until the third named applicant completed year 10. It was claimed that the third named applicant had only studied in English, he would have difficulties with the language in India and experience cultural shock. This claim that the third named applicant would experience cultural shoch if required to return to India, raises questions for the Tribunal if there was ever an intention for the applicant and his family to return. The applicant told the Tribunal that he wished to be granted the visa as his son had a bright future in Australia. The Tribunal acknowledges the claim that it is desired that the third named applicant finish his schooling to year 10 in Australia, but is not persuaded that having obtained Australian citizenship, a decision will not be made for the third named application to complete his education in Australia and remain. In those circumstances it is probable that the applicant and second named applicant will seek to remain onshore with him.

18. The evidence is that since his arrival in 2007, the applicant had spent only 34 days offshore. The applicant claimed because he had been on bridging visas rather than substantive visas for a considerable time, this insecurity prevented him from being comfortable returning to his home country. The Tribunal questioned the applicant as to whether his lengthy period in Australia with minimal absences indicated that he considered this his home and where he wished to permanently reside. The applicant said that he had applied for so long to obtain permanency in Australia, and his parents had made a good life in India, they had premises which he could use as a future restaurant and they had also retired and needed someone to look after them. Although the applicant had only returned twice to India it was claimed that the applicant’s parents had visited him in Australia and were residing with him at the time of the Tribunal hearing. They had travelled to Australia in early 2020 and had remained onshore due to travel restrictions associated with the pandemic. It was anticipated that they would be returning to India in the following month. Under further questioning about his future restaurant location the applicant said his parents had recently built premises for two shops. Currently they were both rented and the applicant identified that one housed a fertiliser business. The Tribunal accepts that the applicant has maintained a close relationship with his parents and it considers that he can continue this relationship through future visits and financial support. It is however, not persuaded that any potential premises owned by his parents require the presence of the applicant because they are currently otherwise occupied and rented. As they are successfully tenanted by other businesses it is not apparent that there is any need for the applicant to make use of this property. In the absence of any evidence of actual plans for a future business, ownership of the property and its demonstrated desirability as a restaurant location, the Tribunal is not satisfied that much weight can be attributed to the claim that this property would acts as incentive for the applicant to return to India.

19. The applicant also submitted that he had complied with the provisions of all his previous visas. This included while he was on bridging visas seeking a review of the decision to refuse his application for a Subclass 866 Skilled Permanent onshore visa. The movement records for the applicant confirm that he had not remained onshore in circumstances where his relevant visas had expired. In submissions it was argued that the fact that the applicant had never applied for a protection visa or became unlawful demonstrated that he valued the Australian immigration system. The Tribunal accepts that the applicant has sought lawful means to remain in Australia and affords this submissions some weight. Although the applicant did depart Australia prior to his application for his initial Subclass 457 visa, the Tribunal notes that he did not return to his home country, and the evidence of the applicant at the hearing was that this departure was to facilitate an offshore visa application.  In relation to a potential claim by the applicant for a Protection visa, the applicant was questioned as to whether he had any fears about returning to India or any reason for claiming protection. The applicant responded that Haryana was a very nice state in India and he had no fears of returning. The applicant did not disclose there was any basis on which he could seek a protection visa, consequently the Tribunal affords this latter submission little weight.

20. Submissions were provided to the Tribunal that the area from which the applicant originates, Haryana, had a strong economy and that it did not face economic pressures that could be found in other areas of India. The Tribunal acknowledges this submission but also weighs this with the length of time that the applicant has spent in Australia, his previous application for a permanent visa, and the fact that even though this application was unsuccessful the applicant has persisted with several further applications for temporary visas in Australia. The visa under review is the third temporary visa the applicant has sought since 2016, when his proceedings for a permanent visa were dismissed. Although there may be economic opportunities in his home country they do not appear to be a strong incentive for the applicant to return home due to the length of time and persistent attempts the applicant has maintained to remain in Australia.

21. The applicant’s representative further submitted that the temporary entry requirements of the Subclass 482 visa were essentially redundant given the introduction of Migration (Specified persons and periods of time for regulation 5.19) Instrument (LIN 22/038) 2022 which provided for Subclass 482 visa holders in the short term stream to access permanent residency. The Tribunal has reviewed the legislative instrument and accepts that this pathway is now available to holders in the short-term stream, however it is not persuaded that the requirements of cl 482.222(a) are now redundant or that the Tribunal is at liberty to ignore what remains expressly legislated as a relevant primary criteria for the visa grant. Further, just because a temporary visa can lead to access to a linked permanent pathway, does not mean that all applicants will follow or be eligible for this pathway. The Tribunal considered that had it been the aim of the legislative instrument to do away with the requirement in cl 482.222(a) of Schedule 2 to the Regulations then this could have been expressly stated. Additionally, this provision has been contained in the Regulations since the visa class was introduced in 2018. Had there been any intention to reduce its efficacy or remove the requirement it is also considered that there has been time for this to have been addressed by the legislature. The Tribunal is not persuaded that it would be in error to apply the express criterion of the Regulation.

22. The Tribunal has also considered the claim that the second named applicant is working in the aged care sector in a senior position and that her employer is supportive of her remaining in Australia. The intended long-term employment of the second named applicant in her chosen profession further indicates to the Tribunal of a settled intention for the applicant to remain in Australia. Further, in the particular circumstances the applicant is the primary applicant for the visa, and there is no evidence that the second named applicant is the subject of an approved nomination and would otherwise meet the primary criteria for the visa. 

1. In considering the totality of the evidence, the circumstances of the applicant are that he has been in Australia for over 15 years on various temporary and bridging visas. Although it is acknowledged that the applicant has generally abided by the conditions of his previous visas, this length of time is not considered temporary. His periods of stay have not been intermittent and he has established ongoing residence in Australia with his family. He has in the past demonstrated an intention to remain permanently with the application for a permanent visa, and after this was unsuccessful pursued various other visas to remain in Australia. The applicant’s son was born in Australia, he has been educated here and the applicant has pursued an application for Australian citizenship for his son. The applicant has worked for numerous years in his nominated occupation and it is considered he has obtained sufficient experience in Australia in the occupation should he wish to pursue it further in his home country and open a restaurant. It is also claimed that premises are available for him to establish his business, yet the applicant continues to wish to remain in Australia and maintain ongoing residence. His intention to return to his nominating employer appears only for the purposes of maintaining the visa application. On balance the Tribunal is not persuaded that the applicant is a genuine applicant for entry and stay as a short term visa holder because it does not accept that the applicant genuinely intends to stay in Australia temporarily. The applicant therefore does not satisfy cl 482.222(a).

2. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

3. As the Tribunal has found that the applicant does not satisfy one of the primary criteria for the visa, the second named visa applicant who has sought to satisfy the secondary criteria as a member of their family unit also does not meet the requirements of the visa grant.

4. In respect of the third named visa applicant, Departmental movement records confirm that he has been granted Australian citizenship. As an Australian citizen he is not eligible for the grant of a Subclass 482 visa and the Tribunal no longer has jurisdiction in relation to his review.

   decision

5. The Tribunal:

   ·Affirms the decision not to grant to the applicant and second named applicant Temporary Skill Shortage (Class GK) visas.

   ·Finds that it has no jurisdiction in respect of the third named applicant.

   Penelope Hunter
   Member