Gill (Migration)

[2023] AATA 925

Gill (Migration) [2023] AATA 925 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jasmohan Singh Gill
Mrs Sukhjinder Kaur Sidhu
Miss Samreet Kaur Gill

REPRESENTATIVE:  Mr Rick Gunn (MARN: 0530987)

CASE NUMBER:  2112872

HOME AFFAIRS REFERENCE(S):          BCC2020/1556461

MEMBER:Warren Stooke AM

DATE:21 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first and secondary named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223 of Schedule 2 to the Regulations; and

·cl 186.311 of Schedule 2 to the Regulations.

Statement made on 21 February 2023 at 8:18am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Motor Mechanic (General) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

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 13 September 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 May 2020. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic (General) – ANZSCO Code: 321211.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor for the nominated occupation of Motor Mechanic (General) – ANZSCO Code: 321211.

6. The applicants appeared before the Tribunal on 17 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Godfrey Fernandez, the owner of the nominating sponsor business, Jerome Engineering Pty Ltd.

7. The applicants were represented in relation to the review.

8. The applicant stated that he had received and read a copy of the decision from the Department and had provided a copy of the decision to the Tribunal with the application for review. The applicant stated that he understood the nomination was refused because of a Department decision relating to the business.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has an approved standard business sponsor for the grant of a 186 Visa.

11. The applicant stated that he understood the application for a sponsorship of a 186 Visa was refused because of a decision of the Department.

12. The applicant was granted a Bridging Visa A on 15 May 2020 that became active when the Temporary Business Entry visa ended on 7 October 2020.

13. The applicant was subject to a positive AFP name check on 12 November 2019.

14. The applicant provided evidence that he has completed the following courses of study:

    a.Certificate III in Light Vehicle Mechanical.

    b.Certificate IV in Automotive Mechanical.

    c.Diploma of Automotive Management;

    d.Certificate III in Automotive Electrical Mechanical.

15. The applicant provided evidence that he was engaged on a 457 that was approved on 11 December 2017, which is when he commenced duties, full-time, with Jerome Engineering Pty Ltd on a salary of $53,945

16. The applicant provided evidence that he undertook a PTE English language test on 30 July 2019 with a score of 56.

17. The applicant provided evidence that the position of Motor Mechanic (General) – ANZSCO Code: 321211, included the following duties:

    a.Undertaking site work on the repair of engines;

    b.Engine overhauls;

    c.Basic servicing and tunes;

    d.Wheel alignments;

    e.Repair of gear boxes and drive shafts.

18. The applicant stated that the tools he used to perform the work are owned by the applicant.

19. The applicant stated that he has a wife and 8 year old, who was born in Australia.

    Evidence of Mr Fernandez (the owner of Jerome Engineering Pty Ltd)

20. The nominating sponsor provided evidence that the business was registered on 18 February 1980 and assigned ACN 005 623 343 with Godfrey Joseph Fernandez as the Director. The associated business, Christy Motors Pty Ltd was registered with ASIC on 9 November 2008 and assigned ABN 134 244 714.

21. The nominating sponsor stated that the business operates a Licenced Motor Car Trading business for used cars in collaboration with Christy Motors Pty Ltd an associated company, that provides repairs and maintenance of motor vehicles, including spray painting, for the public. The business also manufactures and builds trucks and tanks for South West Water and Yarra Valley Water.

22. The nominating sponsor stated in the application that the business employed 14 Australian citizens and permanent residents and 10 foreign employees, which was provided to the Department in an organisation chart.

23. The business currently has 7 employees including the applicant, Mr Gill, who is currently the only mechanic in the team, who was engaged on a 457 and approved on 11 December 2017.

24. The nominating sponsor stated that he was injecting more capital into the business, following the Covid lockdowns.

25. The nominating sponsor stated that it was hard to get local tradesmen, where a contractor cost $35.00 per hour compared to an international student, at a cost of $19.50.

26. The nominating sponsor provided evidence of an employment contract for the applicant, Mr Gill, dated 9 November 2019 for a full-time position , as a Motor Mechanic (General) – ANZSCO Code: 321211 on a salary of $53,945 and superannuation of 9.5 per cent to commence upon the grant of a 186 Visa.

27. The Tribunal asked the nominating sponsor if Mr Gill worked in the workshop and he responded that he works all over the place with outside jobs, which is supported by job cards and Jerome Engineering supplies the parts.

28. The nominating sponsor stated that the business contributes superannuation to Australian Super and that arrears of $60,000 for the business has now been rectified and payments are up to date.

29. The nominating sponsor stated that in the industry, mechanics are supposed to have their own tool kit and that with international students the business supplies the tools if they cannot afford it.

30. The nominating sponsor stated that the applicant had worked for the business since 2017 to 2018 and that the position required a minimum qualification of Certificate III.

31. The nominating sponsor stated that the employees are skills tested externally.

    Nomination of a position

32. Clause 186.223 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Temporary Residence Transition stream. 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.

33. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

34. The Tribunal is satisfied that the evidence provided at hearing demonstrated that the nominee is performing automotive mechanical work for the nominating sponsor and that his duties include the following:

    a.Undertaking site work on the repair of engines;

    b.Engine overhauls;

    c.Basic servicing and tunes;

    d.Wheel alignments; and

    e.Repair of gear boxes and drive shafts.

35. The Tribunal is satisfied that the nominee has worked with Jerome Engineering Pty Ltd and the associated business, Christy Motors Pty Ltd, since engaged on an approved 457 Visa on 11 December 2017 and that the nominating sponsor has undertaken to continue the applicant’s employment for at least 2 years.

36. Further, the Tribunal is satisfied the terms and conditions of employment provided in the contract dated 9 November 2019, with a salary of $53,945 is commensurate with the terms and conditions that would be provided to an equivalent Australian citizen or permanent resident for the nominated position of Motor Mechanic (General) – ANZSCO Code: 321211.

37. On the basis that the nomination has been approved in a substituted decision of the Tribunal, as currently constituted, in Case Matter 2015497, the applicant has satisfied the Tribunal that he is subject to an approved standard business sponsorship for the nominated occupation of Motor Mechanic (General) – ANZSCO Code: 321211.

38. Therefore, cl 186.223 is met.

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

40. On the basis that the primary applicant has met the criteria for the grant of a 186 Visa, it follows that the secondary applicants are members of a family unit that have met the relevant criteria for the grant of a visa.

    DECISION

41. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant and secondary applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223 of Schedule 2 to the Regulations; and

    ·cl 186.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.