Indian Wave Pty Ltd (Migration) - [2023] AATA 239

Indian Wave Pty Ltd (Migration) [2023] AATA 239 (20 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEWAPPLICANT:  Indian Wave Pty Ltd
VISA APPLICANT:  Mr Bhushan Chettri
REPRESENTATIVE:  Mr Josh Prasad Thalluri (MARN: 0210891)
CASE NUMBER:  1935250
HOME AFFAIRS REFERENCE(S):         BCC2019/5427770
MEMBER:Alison Mercer
DATE:20 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Skill Shortage (Class GK) visa.

Statement made on 20 January 2023 at 1:07pm
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – cook – genuine temporary entrant – long residence, multiple temporary visas and courses and two short returns – sick grandmother in Australia, parents’ visits and COVID restrictions – only son’s responsibility to look after parents – previous application for permanent visa refused and application for judicial review in progress – employer’s need for applicant’s services in current skills shortage – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.222(a)
CASES
Durzi v MIMIA [2006] FCA 1767
Hneidi v MIAC [2009] FCA 983
Moller v MIAC [2007] FMCA 168
Qiao v MIAC [2008] FMCA 380
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 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).
The applicant applied for the visa on 29 October 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.
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, which required that he had a genuine intention to reside in Australia temporarily only. The delegate noted that the applicant had been residing in Australia as the holder of temporary visas since June 2008, a period of over 11 years during which time he had only made 2 short trips outside Australia. The delegate noted that the applicant had also unsuccessfully applied for permanent residence and did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Indian Wave Pty Ltd (Migration)

Details

AGLC: Indian Wave Pty Ltd (Migration) [2023] AATA 239
Case: [2023] AATA 239
Decision Date: 20 January 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Indian Wave Pty Ltd (Migration), concerning an application for a Temporary Skill Shortage (Class GK) visa, subclass 482 (Temporary Skill Shortage), short-term stream. The applicant, a cook, sought to demonstrate that they were a genuine temporary entrant.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 482.222(a) of the Migration Regulations. This involved assessing the applicant's circumstances, immigration history, and any other relevant matters, to determine if they intended to comply with the visa conditions.

The Tribunal affirmed the decision under review, finding that the applicant did not meet the genuine temporary entrant requirement. While the applicant presented reasons for their extended stay, including caring for a sick grandmother, parental visits, and COVID-19 travel restrictions, the Tribunal gave less weight to these explanations. The applicant's immigration history, which included a long period of residence in Australia on various temporary visas with minimal absences, coupled with a previous unsuccessful application for permanent residency and a lack of substantial evidence of strong ties to their home country, led the Tribunal to conclude that the applicant's circumstances presented a strong incentive to remain in Australia. The Tribunal also noted an inaccuracy in the applicant's stated arrival date and course of study, which further contributed to concerns about their credibility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided that decision under review should be affirmed.CONSIDERATION OF LAW, CLAIMS AND EVIDENCEGenuine short term applicant 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? For the visa applicant to meet cl 482.222(a), the Tribunal must be satisfied that the visa applicant intends genuinely to stay in Australia temporarily, having regard to the visa applicant’s circumstances and immigration history, and any other relevant matter. As noted above, the Departmental delegate who assessed the visa applicant’s case had a number of concerns about this requirement, noting that:·the visa applicant had been in Australia since late June 2008 on a series of temporary visas with minimal absences from Australia to date;·he had at one stage applied for permanent residence (although that application had not been successful);·the visa applicant now had substantial experience and Australian qualifications as a Cook and thus there appeared no reason for him not to return to India to establish a restaurant of his own, given his claimed intention to do so; and·the visa applicant had little family incentive to return to India as his only sibling was an Australian citizen and he had cousins in Australia, although it was acknowledged that his parents remained in India. In response, the visa applicant submitted (in summary) that:·he stayed in Australia because he was studying, and also wished to be here during the period that his grandmother (who lived in Australia) was diagnosed with cancer and ultimately died;·his parents visited him in Australia on a number of occasions for significant periods, thereby reducing his need to travel to India to see them. In any case, it was not possible for him to travel to India with any guarantee of being able to return to Australia during the COVID19 pandemic in 2020 and 2021 when there were travel restrictions in place;·he had thought of applying for permanent residence when he was offered a nomination for this by his former employers, Nantu Pty Ltd, but this ultimately failed and his only reason for pursuing judicial review of the Tribunal (differently constituted) decision to affirm the decision not to grant him a permanent residence visa was to confront his former employers about their failure to support him;·he felt strong loyalty to his current employer, Mr Chauhan, and wanted to work in the business for several more years so that Mr Chauhan could build it back up to its pre-pandemic level, at which point the applicant intended to return to India; and·he genuinely intended to return to India as he was expected to care for his parents in their old age and this responsibility was a culturally significant one. Moreover, he still intended to establish his own restaurant in Kolkata and was confident that this would provide him with a good income, such that his wages as a Cook in Australia were not a long term incentive for him to remain here.

Decision

Reasons for decision

The submissions by the applicant’s agent were as follows:…This is with reference to my client’s refusal letter dated on 25th November 2019. I state that, the department had refused my client’s application for 482 visas on the following basis as mentioned in the Decision record. A copy of the same is enclosed for your kind reference as E-1. Decision record from Department of Home Affairs states as below: “I have given careful consideration to the applicant's GTE submission and all supporting documents, which states the applicant's intention and long-term career plan is to open their own restaurant in their home country - India. I have also considered the applicant’s immigration history. An analysis of the applicant's immigration history indicates that: ✃ the applicant has established ongoing residence in Australia; and ✃ the applicant appears to be using the TSS and/or other visa programs to maintain ongoing residence in Australia.I note that the applicant has been staying in Australia since their arrival on 29 June 2008 except for making two short trips of 22 days overseas. I also note that the applicant did not leave onshore for a continuous period of over 10 years. This cannot be considered as the reasonable behaviour of a genuine temporary resident. In the GTE submission the applicant stated “I arrived in Australia in 2009 on a student visa, to follow courses in Commercial cookery and hospitality management.” This statement is factually incorrect as the applicant initially arrived in Australia on 29 June 2008 and enrolled to study a Diploma of Accounting, for which the visa was granted. The applicant studied for this course for a few months and switched his study to VET courses in other fields such as hospitality, management and business. I am not sure to what end, the applicant provided this incorrect information. It appears that the applicant has been using other temporary visa programs as stated above to maintain ongoing residence in Australia. From the above visa history, the applicant has been switching between various temporary visa types and switching courses and education providers. The applicant further stated “My goals were to obtain knowledge, training, practice and experience before opening my own restaurant in a tourist location in India.” As per the attached form 1221, the applicant has been employed as a Cook in Indian Restaurants since August 2010. It is reasonable to believe that in the last 9 years, the applicant has achieved the desired skill as these Indian restaurants basically perform the same culinary and menu. Therefore, I give less weight to the argument that the applicant needs to continue working in the same type of Indian restaurant to enhance his skill to enable him to open own business in India. The applicant has not provided any evidence such as detail business plan or funding sources to achieve this goal either. Therefore, I do not see much merit in this claim. The applicant has not provided any substantial evidence of close ties to their home country and has been unable to demonstrate substantial economic ties to their home country which diminishes their incentive to return to India. Furthermore, given the disparity in the economic circumstances between India and Australia, I cannot be satisfied that the applicant has significant incentive to return to India. Departmental records show that since the applicant's arrival on 29 June 2008, on a student visa subclass TU-572, the applicant had spent just 22 days on 2 short trips outside Australia. In addition, the applicant has not demonstrated ties to their home country that may provide a strong incentive for them to return there on the cessation of the temporary visa. The applicant is unmarried with no dependant family members in their home country. While the applicant may have parents/ siblings residing outside Australia, however, the applicant has not returned to his home country to visit them on a reasonably regular basis, as may be expected. I therefore, have serious concerns that the applicant may not have sufficient incentive to return to his home country and I believe the applicant’s present circumstances in Australia present a strong incentive for them to remain in Australia.From the immigration history, it is evident that the applicant has been pursuing all options to remain permanently in Australia, despite the assertion that they plan to return to India and work in a 5-star multi cuisine restaurant with the experience that has been gathered in Australia or to open their own restaurant in India. Having considered the relevant legislation and all of the evidence before me, I find that the applicant does not meet the requirements of paragraph 482.222(a) and clause 482.222 is not met. Decision As clause 482.222 is not met by the applicant, I find the primary criteria for the grant of a Temporary Skill Shortage visa are not met by the applicant. As one primary criterion was not satisfied, I have not assessed the application against any other required criteria. I have also assessed the ability of the applicant to meet the secondary criteria for the Temporary Skill Shortage visa. One of these secondary criteria is specified in clause 482.312 of Schedule 2 of the Migration Regulations. Clause 482.312 requires that the applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa. As there are no secondary applicants included in the application who hold a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa having met the primary criteria, I am not satisfied that the applicant meets clause 482.312 for the grant of a Temporary Skill Shortage visa. Therefore, I refuse the application by Bhushan CHETTRI for a Temporary Skill Shortage visa. ” I state that, all the allegations stated by the DIBP are not true and correct to the best of my knowledge and belief. The Department has considered the applicant’s immigration history, to conclude that the applicant had not left Australia except for two short trips (22 days) and that he had not provided any substantial evidence of close ties to their home country. It is absolutely false to mention that he did not have family ties. I state that, the applicant has strong family ties in Australia. His only sibling, sister is living in Australia along with his several uncles and aunties.His Grandmother was living in Australia. He was very attached and close with his grandmother, who was suffering from a form of skin cancer. A medical certificate issued by Box Hill Hospital is attached herewith for your reference (E-2). As he was very close with his Grandmother, he was worried to leave her. The doctors had given up on her on the basis that she might pass away anytime. Unfortunately, she passed away due to the cancer. A medical certificate issued by the medical practitioner and a detailed copy of the funeral expenses provided by the Funeral home is attached herewith for your reference (E-3). I wish to state that, the reason for the applicant to not to visit his parents back in India was purely as his mother visited him in Australia. His mother and one aunt arrived in Australia on 4th February 2014 when his grandmother passed away and stayed for 2 months. His mother continued to visit him again in Australia on 31st July 2015 and stayed for 6 months and she is planning to visit next year and stay for a period of one year. When his parents could not visit him in Australia, he went to back for two short visits, which has been considered by the case officer. I state that, it is not the case that the applicant did not exhibit any ties to his home country. There was no necessity for him to visit his family again in India, when they have spent a lot of time in Australia and he did not feel that he should leave his severely sick grandmother. It has always been either the visa applicant visits their parents, or the parents come to visit him. Hence, the allegations made by the department officer is inconsiderate and unjustified. Based on the above evidence the visa applicant has strong ties to his family. Hence, the ground for which the application has been refused is against the principles of natural justice. It is absolutely baseless to conclude that there is no substantial evidence of close ties to his home country and that the applicant does not exhibit any significant incentive to return to India. I wish to state that the case officer instead of asking for more clarification as principal of natural justice, refused the application in haste based on a rushed decision. In the decision record the case officer stated; In the GTE submission the applicant stated “I arrived in Australia in 2009 on a student visa, to follow courses in Commercial cookery and hospitality management.” This statement is factually incorrect as the applicant initially arrived in Australia on 29 June 2008 and enrolled to study a Diploma of Accounting, for which the visa was granted. The applicant studied for this course for a few months and switched his study to VET courses in other fields such as hospitality, management and business. I am not sure to what end, the applicant provided this incorrect information I wish to state that, the applicant did not provide incorrect information intentionally. It is purely due to oversight and was not provided to mislead the department. The information in the GTE was provided on the base that the applicant is continuing to work as a cook. Furthermore, the decision record stated; The applicant further stated “My goals were to obtain knowledge, training, practice and experience before opening my own restaurant in a tourist location in India.” As per the attached form 1221, the applicant has been employed as a Cook in Indian Restaurants since August 2010. It is reasonable to believe that in the last 9 years, the applicant has achieved the desired skill as these Indian restaurants basically perform the same culinary and menu. Therefore, I give less weight to the argument that the applicant needs to continue working in the same type of Indian restaurant to enhance his skill to enable him to open own business in India. The applicant has not provided any evidence such as detail business plan or funding sources to achieve this goal either. Therefore, I do not see much merit in this claim As mentioned by the case officer, the applicant has been a cook for 9 years. Hence, he is a very experienced and skilled professional. The sponsor for the applicant has been devastated and disappointed at his decision to leave the restaurant, as he contributed to financial success of the restaurant vastly. Since the employer needed the applicant to be working at the restaurant desperately due to his highly skills and expertise, the applicant was forced to stay behind. Due to the same reason the nomination for the applicant has also been approved. The refusal of the visa application has put the applicant to untold hardships and stress to the employer in losing the benefits and financial loss for no fault of their own. I state that, the application has been refused on flimsy grounds and based on a rush decision to put stress and strain for no purpose. The case officer’s refusal is unjustified, and I request the department to look in the matter and review it and pass orders in favour of the applicant so that the employer can be beneficial at the applicant’s service. I wish to state that the company is desperate in need of the applicant & his skills are very much being utilized. So therefore, I kindly request you to look into the facts in detail & please set aside the decision made by the department in the interest of justice. Enclosed list of documents: E-1 Decision record E-2 Medical certificates for the applicant’s grandmother E-3 Funeral expenses E-4 Response to nomination refusal and nomination approval E-5 Letter from Owner…

Ratio Decidendi

Legal Principle Established

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