Harjit Singh (Migration)

[2018] AATA 3555

Harjit Singh (Migration) [2018] AATA 3555 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Harjit Singh
Mrs Amarpreet Kaur

CASE NUMBER:  1728635

DIBP REFERENCE(S):  BCC2017/2009986

MEMBER:Warren Stooke AM

DATE:14 August 2018

PLACE OF DECISION:  Melbourne

DECISION: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 Schedule 2 to the Regulations; and the second named applicants meet:

· cl.187.311 of Schedule 2 to the Regulations.

Statement made on 14 August 2018 at 1:18pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cls 187.233(3), 187.311

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 Immigration to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 7 June 2017. The delegate refused to grant the visas on 27 October 2017.

2. 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 (ANZSCO 3514). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

3. The delegate refused to grant the visas, as the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because, at the time, the nominating sponsor Moro Rekhi Pty Ltd was not granted valid sponsor status for the nominated position.

4. The nominating sponsor appeared before the Tribunal on 20 April 2018 to give evidence and present arguments to support their application for a nominated position, which was remitted by the Tribunal as presently constituted for reconsideration on 10 May 2018 [Tribunal Case 1719812]. 

5. The applicants were represented in relation to the review by their registered migration agent.

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

7. On 12 July 2018 the Tribunal made the decision to remit Tribunal Case 1713822 applying to the applicant nominated herein. In light of the determination in that case, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

8. The issue in the present case is whether the applicant has been nominated to an approved position and whether the applicant meets the requirements of the legislation for the purposes of employment in the nominated position.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

10. 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 r.1.13A and r.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.

11. In the course of  the proceedings concerning the nominating sponsor’s approval [Tribunal Case 1719812], the Tribunal was provided, in evidence, with an overview of the nominating sponsor’s business, Mac’s Irish Pub, Kilmore, which included the following information:

    a.The hotel is a Bar and Bistro that operates for the 7 days of the week between the hours of 10.00 am and 11.00 pm;

    b.The Bar and Bistro caters for up to 100 people at a sitting and requires a full-time chef to service the customers;

    c.The chef controls the kitchen and supervises the cook who undertakes preparatory work in the kitchen, including entrees

    d.The establishment employs 13 people, including two chefs and one cook, with the residual staff being engaged as waitresses/waiters and kitchen hands;

    e.The employees are engaged under the terms of the Hospitality Industry Award 2010 and all employees are provided with an FWA statement at the time of engagement.

12. The Tribunal, as currently constituted, determined that the size and scale of the business supports the employment of a cook in addition to the two chefs who undertake the supervisory role in the kitchen. The business had a net profit of $157,371 in the financial year 2016-17, after meeting all the operating expenses, wages and superannuation. In this regard, the business had a gross income of $932,844 in the last taxable year and has sound projections looking forward, after a significant make-over renovation of the premises.

13. From the material on the Department file [Tribunal Case 1719812], the Tribunal is satisfied that the nominating sponsor’s application was validly made and the Tribunal was satisfied that the nominating sponsor identified the need to employ a paid employee in the nominated position of Cook (Australian and New Zealand Standard Classification of Occupation) (ANZSCO) code 351411, a position specified as being under the nominator’s direct control.

14. The Tribunal is also satisfied that the applicant, in this case, has the requisite qualifications and experience to undertake the duties required in the nominated position. In this regard, the applicant’s nominating sponsor provided evidence of the scope of duties undertaken by the incumbent in the nominated position [Tribunal Case 1719812 - Folio 40], which includes the application of the nominee’s skills and competencies obtained through studies in Commercial Cookery, at the Certificate III and IV level and at the level of Diploma in Hospitality, together with formal on-the-job experience of two years. This was supported by formal evidence from the nominator, who confirmed his qualifications, experience and described his duties in preparing for meals, including the pre-preparation work and that his preparation will support up to 100 people at any one sitting over lunch and dinner time sessions. The incumbent will be under the direct control of the nominator and the senior chef. Further, the Tribunal is satisfied that the scope of duties to be performed by the nominee are consistent with ANZSCO 351411.

15. The applicant, who has worked in the business for 12 months, has a Bridging visa without work restrictions and works from 10.00am each shift for a period of 8 hours (split shifts) which is permitted under the industrial award. The terms and conditions of employment pertaining to the nominee are contained in the contract of employment [Tribunal Case 1719812 - Folio 25]. The nominating sponsor confirmed in evidence that the applicant is not related to anyone within the business ownership.

16. The nominating sponsor in Tribunal Case 1719812 gave evidence that the applicant will work in the business for more than 2 years and that the nominee is experienced through his formal training. The owner of the business was delighted at that work ethic of the nominee and said that he was keen and desperate to be given an opportunity. The nominee has an EILTS score of 6.0 overall and is a competent communicator.

17. Therefore, cl.187.233 is met.

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

    DECISION

19. 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 Schedule 2 to the Regulations; and the second named applicants meet:

    ·cl.187.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member