Jeeartit (Migration)

[2021] AATA 4985

Jeeartit (Migration) [2021] AATA 4985 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Korroong Jeeartit
Mr Payungsak Lada

CASE NUMBER:  1915097

HOME AFFAIRS REFERENCE(S):          BCC2017/2317448

MEMBER:Nicholas McGowan

DATE:28 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (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: 187.233(3) and (5).

Statement made 28 October 2021 at 9:55am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Café or Restaurant Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

1. The issue in this case was that the nomination lodged by The Trustee for the Long Family Trust on 21 November 2018 (being the nomination that was referred to in paragraph 187.233(1) was refused by the minister’s delegate.

1. The delegate refused the nomination by The Long Family Trust as the delegate was not satisfied regulation 5.19(4) was met, as they did not identify a genuine need to employ a paid employee to work in the position of a restaurant manager at a full-time basis under the nominator’s direct control. Further, the delegate found insufficient claims or evidence were submitted against r 5.19(3), meaning that the nominator failed to demonstrate that they met regulation 5.19(3). It followed that the applicant (the nominee) did not meet the requirements under law at clause 187.233 of the Act.

1. Evidence submitted to the Tribunal includes legal submissions, letters of support, and documents in response to the Tribunal’s s.359(2) invitation to provide information relating to the nomination.

1. The applicant submits that the nominated position is genuine and necessary for the operation of the business, and that the duties are commensurate with those listed in the Australian and New Zealand Standard Classification of Occupation for the nominated position of Café or Restaurant Manager - ANZSCO 141111. This was addressed in the legal submissions provided to the Tribunal and in a letter from the Director in which he contests that this need has increased with the reopening of business following the COVID19 lockdown and the increase in the operational demands of the business, which includes management of complex and ever changing external dining arrangements for patrons.

1. Updated information sent to the Tribunal showed that the nominee did not work for the nominator from 30 July 2020 to 7 February 2021 as she was on unpaid leave due to family reasons.

1. New evidence of advertisements for the nominated position has been provided to the Tribunal. Online advertisements commenced on 29 September 2020 for a period of four weeks. Evidence provided indicates that they received six (6) applications in response to the advertisement, though the Tribunal has been advised they were unable to recruit a suitably experienced candidate to fill the position.

1. A copy of the contract signed in 2017 was provided to the Tribunal, providing for employment to the nominee for a minimum of two years subject to the approval of a subclass 187 visa. The nominator has recently submitted to the Tribunal in a written letter that they have the financial capacity to employ the nominee for at least two more years, and a letter dated 1 September 2021 regarding an increase in pay to the nominee was provided to the Tribunal along with corresponding payslips. The evidence before the Tribunal is that the nomination has not subsequently been withdrawn and the position is still available to the nominee, meaning that the applicant meets 187.233(3) and (5).

1. Updated evidence relating to business information from the ATO and from ASIC was also provided to the Tribunal and will be shared with the Secretary of the Department as required under the Act.

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

(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.