Geeta Rani (Migration)

[2021] AATA 4983

Geeta Rani (Migration) [2021] AATA 4983 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Geeta Rani Geeta Rani
Mr Dharminder Kumar
Master Rohan Sharma

CASE NUMBER:  1901237

HOME AFFAIRS REFERENCE(S):          BCC2018/704768

MEMBER:Stephen Witts

DATE:28 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application 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 187.223 of Schedule 2 to the Regulations; and

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 28 October 2021 at 2:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Chef – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 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 12 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of chef.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met the requirements under the regional employer nomination via the direct entry stream.

6. The applicants appeared before the Tribunal of 28 October 2021 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Mr Manpreet Singh, the Director of Hargun Corp Pty Ltd.

8. The applicants were represented in relation to the review by their representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of the regional employer nomination program via the direct entry stream.

    Nomination of a position

11. 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.

12. 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.

13. The Tribunal has considered all the material before it including evidence given prior to the hearing and evidence given at hearing.

14. In particular the Tribunal notes that financial material has been provided to it indicating that in tax year 2020, on a total income of $331,457 that the company made a profit from ordinary activities before income tax of $1955 and that in the tax year 2019 on a total income of $369,687 it made a profit from ordinary activities before income tax $7189. The Tribunal also notes that the business had a liability of $6846 in 2020 and $9970 in 2019.

15. The Tribunal notes also that an organisation chart was provided for the business indicating that it had two full-time cooks, two front staff, a chef, and a kitchen hand, all currently on temporary visas. The Tribunal also notes that the business also has a restaurant manager.

16. The Tribunal also notes that an employment contract was included for the nominee, Ms Geeta Rani, indicating that her employment commenced on 15 August 2021 and that she is being paid a total of $66,000.

17. The Tribunal notes that a statement was provided by the director of the business, Mr Manpreet Singh, stating that he requires the nominee as a chef at his Indian restaurant which trades seven days a week and is extremely busy, and that it has many divisions and caters to a wide range of customers for dine in and take away. It was stated that the business requires a dedicated chef in addition to a restaurant manager, cooks, a kitchen hand and wait staff and that it needs at least 2 to 3 full-time chefs. It was stated that the position was advertised and that the nominee is the best person for the job and that she has a diploma level education hospitality and in management and has the necessary experience for the role.

18. At the hearing the Tribunal had a discussion with Mr Singh regarding the application. He confirmed that he was the sole director of the company and that he has been such since 2019. He stated that he runs a logistics and transport business and three cleaning businesses in Melbourne, that he owns four trucks, that he employs approximately 20 employees and that he has been operating his businesses for 5 to 6 years. He stated that he has owned the restaurant business in Morwell since 2019.

19. Mr Singh also provided evidence of the need for the nominee to continue employment as a full-time chef noting that she has been employed as such in the business on a full-time basis since 10 August 2016. He stated that she is the longest duration employee in this business and that she has particular skills in providing specific and special dishes in high demand from his clientele. He stated that now the pandemic is over he intends to expand his business in both dine in and take away and that he has made a commitment to continue her employment with the business most specifically via a new contract dated 15 August 2021 with a current salary of $66,000 including superannuation.

20. The applicant, Mrs Rani, provide evidence in regard to the nature of her role in particular her duties and responsibilities and those of others in the business including the other full-time chef and the cooks. The Tribunal has considered this evidence carefully and finds that the nominee is a necessary member of staff, noting that she is the oldest duration employee, and that she is carrying out the functions of a chef as outlined in ANZSCO 351311 and that the business is able to provide her with at least another two years full-time employment in accordance with her new employment contract recently signed.

21. Therefore, cl 187.233 is met.

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

23. The Tribunal notes that as the primary applicant met the criteria for the grant of the visa that the other applicants also met the criteria for the grant of the visa.

    DECISION

24. The Tribunal remits the applications 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 187.223 of Schedule 2 to the Regulations; and

    ·cl 187.233 of Schedule 2 to the Regulations.

    Stephen Witts
    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.