Hoque (Migration)

[2023] AATA 915

Hoque (Migration) [2023] AATA 915 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Emranul Hoque

REPRESENTATIVE:  Ms Tasnova Chowdhury

CASE NUMBER:  2000331

HOME AFFAIRS REFERENCE(S):          BCC2019/6394815

MEMBER:Penelope Hunter

DATE:21 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.222 of Schedule 2 to the Regulations.

Statement made on 21 February 2023 at 3:47pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Cook – genuine temporary entrant – lengthy period of residence in Australia – current shortage of hospitality workers – future business plans – intention to apply for a permanent visa – intention to comply with visa conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.222

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 19 December 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 December 2019. 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. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, 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 the Nelson Hotel Pty Ltd.

3. The delegate in this case refused to grant the visa on the basis that the visa 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.

4. The applicant appeared before the Tribunal on 13 February 2023 to give evidence and present arguments. The applicant was represented in relation to the review, and his representative also participated in the Tribunal hearing.

5. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this matter is whether the applicant is a genuine applicant for entry and stay in Australia as a short term visa holder.

   Genuine short term applicant

7. 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?

8. 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.

9. The applicant is a 44 year-old, citizen of Bangladesh. He sought the visa to work in the position of Cook for his sponsoring employer for an additional two years, which at the time of visa application was until 2021. In support of his visa application the applicant provided to the Department the following relevant documents:

   i.Certificate of Completion of a Certificate III in Hospitality (Commercial Cookery) dated 7 July 2012.

   ii.New Cambridge College, letter of confirmation of enrolment of the applicant in a Diploma of Accounting, competed 14 of the required 17 units, dated 19 April 2003.

   iii.AICL Education, letter of completion of Diploma of Business between 19 October 2009 and 3 July 2010.

   iv.Bridge Business College, letter dated 1 November 2019, confirming the applicant completed a Diploma of Tourism on 16 May 2015.

   v.VET Skills Assessment for the position of Cook dated 15 May 2018.

   vi.Reference letter Nikos Restaurant/Café dated 5 January 2017, confirming the applicant’s employment.

   vii.PAYG Summaries for the applicant for the years ending 30 June 2010, 2011, 2012, 2018 and 2019.

   viii.Australian Taxation Office, Notices of Assessment for the years ending 30 June 2013 and 2014.

   ix.PTE Academic Test Taker Score report issued 15 March 2018.

   x.Evidence of Health Insurance.

   xi.Copy of the applicant’s passport.

10. In their decision record, a copy of which the applicant has submitted to the Tribunal, the delegate set out that since his initial arrival in Australia in March 2009, the applicant had spent 229 days outside Australia and had held either a student visa or two temporary work visas. The applicant also indicated in his visa application that he may apply for a permanent visa. It was also noted that the applicant had not provided details of any employment overseas or evidence of any assets or other business ties to their home country. The delegate had concerns that the applicant had not demonstrated an incentive to return to Bangladesh and it was unable to reconcile the applicant’s extensive proposed stay in Australia with their claim that they were a genuine temporary resident.

11. The Tribunal received an application for review on 8 January 2020.

12. On 7 February 2022, the representative of the applicant provided submission to the Tribunal and the following relevant additional documents:

    i.Statutory declaration of the applicant, declared on 6 February 2023.

    ii.Statement of Toby Richardson on behalf of the applicant’s employer.

    iii.Birth certificate of the applicant.

    iv.Passport of the applicant’s mother, Akhtar Jahan.

    v.Statement from the applicant’s uncle, Khan Asadur Rahman, and identity documents.

    vi.Business licence Food Fantasy Restaurant.

    vii.Tax documents and letterhead, and photographs of Food Fantasy Restaurant.

    viii.Statement of the applicant’s Bangladeshi bank account with City Bank for the period 1 July 2022 to 31 December 2022, closing balance 365,972.30 Taka.

    ix.Bangladeshi American Express Card for the applicant.

    x.Statement of the applicant’s friend, Mahmud Hasan.

    xi.Statement of the applicant’s brother, Md Ahsanul Hoque.

13. In his statutory declaration, the applicant set out the following relevant information, in summary:

    i.He arrived in Australia in 2009 on a student visa, his course was Business Management and he found it hard to get a part-time job, he had very few job interviews but he was not successful because he did not have work experience in Australia and did not speak English well.

    ii.He later became interested in Hospitality, and he undertook the Certificate III of Hospitality and a Diploma of Tourism. He worked as a cook at Nikos Restaurant and learned a lot about preparing food to Australian standards.

    iii.He then had a job offer at The Nelson Hotel. The hotel has a lot of customers and the food service is very good. He was proud of himself for being able to work at this hotel and he learned more about preparing different types of food. He has practical knowledge and is experienced in the café, restaurant and hotel. He could use everything he has learned when he returns to his home country.

    iv.He never thinks about living permanently in Australia, he did not apply for a permanent residence visa. His plan was to get experience in Australia and then go back to Bangladesh where he would run his Uncle’s restaurant. He was about to go back to Bangladesh when borders closed due to the COVID-19 pandemic, his uncle’s business closed as well.

    v.From 2020 to 2022 it was safer to remain in Australia, as people were dying in his home country. For this reason he asked his agent about a permanent residency visa, he thought that if he had permanent residency he could travel back to Australia in the future, if he wished to visit his brother in the future for example.

    vi.His plan is to return to Bangladesh to work for his uncle in his restaurant, the Food Fantasy Restaurant. His uncle wishes to retire in a few years and the applicant will be taking over the business. His experience in Australia will assist.

    vii.He also needs to return to Bangladesh to take care of his mother who is getting old. His father died and his mother is left alone. The applicant is close to his mother and he sends her money almost every month. She was unwell with diabetes and arthritis. She lives with his older brother but they do not get along well. The plan is when the applicant returns home his mother will live with him.

    viii.He also plans to marry a local girl in Bangladesh. His mother wants him to get married soon as he is getting older. He wants to settle down in Bangladesh and have a family there and have his children know his mother.

    ix.He is saving for the future in his home country. He does not have any properties in Australia as he had no plans of staying. He has a bank account in Bangladesh where he saves all his money for the future.

14. On 13 February 2023, the applicant submitted a letter of contract renewal from the Nelson Hotel Pty Ltd, dated 16 May 202, for the period 22 May 2022 to 23 May 2024.

15. On 14 February 2023, the applicant submitted evidence of a further Bangladeshi bank account with the Al-Arafah Islami Bank Ltd, with transactions dating back to 10 September 2018, and a balance as at 7 February 2023 of 22,72,754.80 Taka.

16. The Tribunal discussed with the applicant at the hearing his lengthy period of residence in Australia and asked why he was seeking to remain for an additional two years. The applicant advanced several reasons for the Tribunal, firstly he referred to his position with his sponsoring employer, and discussed the current shortage of hospitality workers. The applicant submitted he had considerable experience in his role with his employer, he was a senior cook and supervised several staff members. Evidence was provided that his employer had recently opened a function centre venue upstairs. This was demanding the skills of the head chef and the applicant had been left in charge of the ground floor dining while the head chef is occupied with the establishment of the function centre. The applicant told the Tribunal that this growth of his sponsor business was important and challenging in this time of staff shortages and he believed that he had important skills and experience that he could contribute to the ongoing success of the business. The applicant believed that his current short term ongoing employment would assist his employer with the establishment of the new function centre and allow them time to recruit for his replacement, or in the alternative, for him to appropriately train existing kitchen staff to step up into a higher role.

17. The applicant’s evidence was generally corroborated by the letter of support provided by his employer. The applicant is reported to be adept at multiple sections of the kitchen, is an important part of the team and is able to step in for the head chef in times of leave. According to Mr Richardson if the applicant was to now leave it would definitely impact on their business. In particular, they would have to consider reduced hours of operation until they find a replacement and further delay the operation of their new function space.  The Tribunal further notes the increase in the salary offered to the applicant by the sponsor from $54,000 at the time of visa application to its current level of $72,000 as further evidence of his value to the sponsoring business.

18. The applicant further identified that he was seeking a review of the Departmental decision as he did not wish to have a visa refusal on his immigration history. The applicant explained that he had family in Australia, particularly his brother and his brother’s children. He would like in the future to be able to travel to Australia to visit his family. He also has an interest in tourism and hospitality, and he did not wish for any visa refusal to impact on any future business or travel that he may engage in. The Tribunal accepts that a visa refusal as a Bangladeshi national may impact on the applicant’s future travel opportunities.

19. The applicant was able to speak to the Tribunal at the hearing without hesitation as to his plans for his future in Bangladesh. He had previously undertaken studies in geography, and again spoke of his interest in tourism. It was claimed that his studies in Australia were never aimed with providing him with a migration pathway, rather he wished to increase his tourism and hospitality skills as the area of his hometown had a lot of tourists attracted to surrounding wetlands. At the time of visa application he had the opportunity to take over the existing restaurant business of his uncle, but was seeking further experience in hospitality before stepping into this role. The Tribunal accepts the claims and evidence of the applicant that the COVID-19 pandemic has impacted his future business plans. The applicant has provided a reasonable basis for the delay in his plans due to the closure of his uncle’s business for a lengthy period during the pandemic and his uncle’s desire to continue in the business and rebuild before he hands things on to the applicant. The Tribunal accepts the evidence as to the existence and operation of the business, it is accepted that this could provide future employment for the applicant and an incentive for him to return to his home country. The applicant has also provided evidence of a significant term deposit he has contributed to in Bangladesh since 2018. It was the evidence of the applicant at hearing that he intends to use these funds for future business endeavours in his home country.

20. The Tribunal also accepts the claims of the applicant that he is close to his remaining family in Bangladesh. With the passing of his father in 2019, it is the evidence of the applicant that he feels the responsibility to step in and provide for his mother. The applicant provided evidence of his Bangladeshi bank account with City Bank that he regularly contributes to in order to provide funds for his mother. His mother still resides on the ground floor of the family home. The applicant anticipates returning to live with her. His elder brother currently resides with his family on the second floor of the home and there is conflict between the two households. The applicant spoke at the hearing with great emotion as to his commitment to take on additional familial responsibilities when he returned to Bangladesh. The applicant’s movement records confirm that prior to the visa application he had regularly returned to his home country on at least seven occasions, further confirming the close ties.

21. The Tribunal has also considered the particular circumstances of the applicant in Australia. The applicant claims that he has not entered into any relationships in Australia. He is single and currently lives alone in rented accommodation. The Tribunal has considered the claims of the applicant that he wishes to marry and have a family in the future and that he intends for his family to arrange a suitable marriage in Bangladesh. The applicant has provided letters from his brother and friend in support of this intention. These stated circumstances further demonstrate an intention of the applicant to return to his home country and support his claims that he intends for the future a short stay in Australia.

22. Of concern for the Tribunal was that no evidence was provided to the Department at the time of his visa application to support his genuine intention to stay in Australia temporarily. Instead his visa application referred to the applicant being the beneficiary of grandfathered provisions and a future intention to apply for a permanent visa. When asked to address this matter at the hearing, the applicant claimed not to have knowledge of the actions of his migration agent in providing this information. He claimed that he did not provide these instructions and the statement was not consistent with his intention at the time. While the Tribunal considers that the applicant is ultimately responsible for information any instructed agent provides on their behalf, it will in the particular instance provide the applicant with the benefit of the doubt. In making this determination the Tribunal has had regard to some contemporaneous evidence of the applicant relating to the establishment of bank accounts in Bangladesh for savings pre-dating the visa application, his evidence of his uncles business ownership and the change in family circumstances with the passing of his father in 2019.

23. As to other matters, the applicant acknowledges that a request was made to the Tribunal in 2021 regarding expediting proceedings and a potential impact on a permanent visa. The applicant explained that these enquiries were made during the pandemic, when he was very uncertain as to his visa status, whether he could remain in Australia, and the potential of having to leave suddenly in circumstances of travel bans and considerable COVID-19 fatalities in his home country. The Tribunal accepts that the applicant would have experienced ongoing anxiety as to his visa status in these circumstances.

24. On the evidence, although the applicant has spent a considerable number of years in Australia, he has not on any previous occasion applied for a permanent visa. The applicant has departed Australia on approximately seven occasions since his initial arrival and returned to his home country. The applicant has discussed with the Tribunal plans for a career and business in the future in Bangladesh. When asked by the Tribunal the applicant claimed to have no fears about returning to Bangladesh, he said there were no security issues in his home country that would act as an incentive for the applicant to remain in Australia. There is no evidence that the applicant has accumulated any assets in Australia. While the evidence is very finely balanced, the Tribunal accepts that the applicant is seeking to remain in Australia temporarily to work in the nominated occupation to obtain further experience, savings and assist his employer.

25. For these reasons, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant meets cl 482.222(a).

    Does the applicant intend to comply with visa conditions?

26. For the applicant to meet cl 482.222(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions to which the visa is subject, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

27. A visa granted to an applicant who meets the primary criteria must have condition 8607 imposed: cl 482.611. Condition 8607 essentially requires the visa holder to work only in their nominated occupation and for certain businesses, meet mandatory licensing requirements, and to commence work within 90 days and not cease employment for more than 60 days. Condition 8501 (health insurance) must also be imposed, and condition 8303 (no involvement in disruptive activities/threatening violence towards Australian community) may be imposed: cl 482.612 and cl 482.613.

1. The Tribunal is satisfied that the applicant will continue employment with his sponsoring employer in the nominated occupation of Cook, while holding a subclass 482 visa. There is no evidence to suggest that the applicant has not complied with a condition of any previous visa. The applicant told the Tribunal at hearing that he intends to comply with the conditions to which any future visa is subject. There is no evidence to dispute this intention.

2. For these reasons, the Tribunal is satisfied that the applicant intends to comply with the conditions to which the visa is subject. Therefore, the applicant meets cl 482.222(b).

   Is the applicant a genuine applicant for entry and stay as a short term visa holder because of any other relevant matter?

3. For the applicant to meet cl 482.222(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder because of any other relevant matter (in addition to the requirements in cls 482.222(a) and (b)).

4. There are no other relevant matters before the Tribunal would demonstrate to the Tribunal that the applicant is not a genuine applicant.

5. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder as required by cl 482.222.

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

   DECISION

7. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

   ·cl 482.222 of Schedule 2 to the Regulations.

   Penelope Hunter
   Member