Gill (Migration)

[2021] AATA 4536

Gill (Migration) [2021] AATA 4536 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amritpal Kaur Gill
Mr Jagdeep Singh
Ms Harveen Kaur Grewal

CASE NUMBER:  1918620

HOME AFFAIRS REFERENCE(S):          BCC2017/4766443

MEMBER:Stephen Witts

DATE:8 November 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 08 November 2021 at 8:02am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – nomination approved upon review – genuine position – carrying out the duties for several years – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.223, 187.233; rr 1.13, 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 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 13 December 2017. 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 cook.

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 criteria for the grant of a regional sponsored migration scheme visa.

6. The applicants appeared before the Tribunal on 4 November 2021 to give evidence and present arguments.

7. The Tribunal also received oral evidence from nominator, Mr Harminder Singh, the director of Rodferns Pty Ltd.

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

9. For the following reasons, the Tribunal has concluded 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 criteria for the grant of a regional sponsored migration scheme visa.

    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. According to the delegate’s decision record provided to the Tribunal by the applicant, the applicant, Rodferns Pty Ltd, now trading as Spicy Flavours Indian Restaurant since 2019, has been trading since 30 January 2014 as other businesses in the restaurant industry. According to the delegate the applicant provided an application that stated that Ms Gill has been offered full-time employment as a cook. According to the delegate it made a decision under regulation 5.19(4) as above.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. The Tribunal notes material has been provided to the Tribunal stating that the applicant actively trades as a business and has now been trading since 2014.

15. According to this submission the applicant has been actively trading in Australia from 2014 and from July 2018 until September 2018 had total sales of $84,729 which increased to $167,209 until December 2018 and that sales in the first quarter in the year 2019 were $170,327 which increased to $170,163 in quarter four of 2019. It was further stated that the company paid $222,832 in wages in the year ending June 2019 and $320,024 in the year ending June 2020.

16. In other material provided it was also noted that at end of June 2020 there was a profit of $43,061. It was also indicated that there were total liabilities as of 30 June 2020 of $549,264 and the profit to May 2021 was $42,110.

17. The nominator stated that he first came to Australia in 2007 or 2008 as a student and successfully completed a diploma level course in hospitality and that since then he has worked in various hospitality businesses. He stated that he was currently working in the mining industry as an operator of trucks and has been employed by Rio Tinto for 18 months.

18. The Tribunal had a discussion with the nominator regarding his financial situation in the business and he confirmed the above material.

19. He stated that he currently employs seven employees, including  two staff that are Australian citizens, a kitchen hand who is on a student visa, a trainee cook who is on a student visa, two chefs who are on bridging visas and a cook, also on bridging visas. He confirmed that as well as this application for a cook he also has three other nominations in place for hearing before the Tribunal for various staff including a chef, cook, and café and restaurant manager.

20. At the hearing the Tribunal had a discussion with nominee who stated that she is currently working in the business as a cook and that she has been working in this current role for five months but that she has also worked with the restaurant at other times on a full-time basis for several years in the same role and that she is paid $55,000 per year and superannuation in accordance with the contract. She stated that she is currently on a 457 visa and that she first came to Australia as a student and studied various certificate level and diploma level courses in cooking and hospitality management.

21. The Tribunal had a detailed discussion with the applicant and the nominee about her duties and responsibilities as a cook and about her ongoing employment in that role for several years.

22. The Tribunal has considered this matter very carefully and finds that the evidence provided by the applicant and the nominee to be credible and that this is a genuine position in that the nominee is carrying out the duties of a cook and has been for several years and that the business is in a position to continue to employ her for another two years.

23. The Tribunal has considered this evidence carefully and finds that the nominator has demonstrated that there is a need in this business for a full-time cook under the circumstances described above and that the business although very modestly profitable has been trading for some years and that the nominee has provided evidence she has worked as a cook for the business for several years in accordance with the duties and responsibilities outlined in the appropriate ANZSCO code.

24. Therefore, cl 187.233 is met.

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

26. The Tribunal also finds that as the primary applicant meets the criteria for the grant of the visa that the secondary applicants also meet the criteria.

    DECISION

27. 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.