Kairay (Migration)

[2020] AATA 1668

Kairay (Migration) [2020] AATA 1668 (15 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gagandeep Singh Kairay
Mrs Iesha Sawhney

CASE NUMBER:  1708048

HOME AFFAIRS REFERENCE(S):          BCC2014/1392191

MEMBER:Susan Trotter

DATE:15 May 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 15 May 2020 at 4:36pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Café or Restaurant Manager – adverse information – sponsorship bar – not reasonable to disregard – availability of position – business no longer in operation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.13A; Schedule 2, cl 187.233

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 and Border Protection on 26 March 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. In the present case, the first named applicant (the applicant) applied for the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager for Xiamen International Pty Ltd. The second-named applicant is seeking the visa as a member of the family unit of the applicant.

3. The applicants applied for the visas on 5 June 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

5. The delegate refused to grant the visas on the basis that they were not satisfied that the applicant met cl.187.233(4A) of Schedule 2 of the Regulations as there is adverse information known to Immigration about the applicant’s sponsor who made the nomination and it is not reasonable to disregard this adverse information. As regards, the second-named applicant the delegate was therefore not satisfied that the second-named applicant was a member of the family unit of a person who holds a Subclass 187 visa, a necessary criterion relevant to applicants seeking to satisfy the secondary criteria.

6. The application lodged an application with the Tribunal on 13 April 2017. The applicants provided the Tribunal with a copy of the delegate’s decision record upon making their application.

7. The applicants appeared before the Tribunal by telephone from India on 17 March 2020 to give evidence and present arguments.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES

9. The issue before the delegate was whether the applicant met the requirements of cl.187.223(4A) of Schedule 2 to the Migration Regulations. However, the Tribunal raised with the applicants at hearing that there was another issue in relation to which it held concerns could not be met as required, specifically, cl.187.233(5) of Schedule 2 to the Migration Regulations.

10. For applicants in the Direct Entry stream, the requirements of cl.187 of Schedule 2 to the Regulations include that:

    (a)  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 regulations 1.13A and 1.13B); or it is reasonable to disregard any such information: subclause 187.233(4A); and

    (b)  The position is still available to the applicant: subclause 187.233(5).

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. ‘Adverse information’ is defined by r.1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

    (a)  has contravened a law of the Commonwealth, a State or a Territory, or

    (b)  is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or

    (c)   has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or

    (d) has become insolvent (within the meaning of s.95A of the Corporations Act 2001), or

    (e)  has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.

12. The applicant’s evidence at hearing included as follows:

    (a)  He understands that the company that was sponsoring him was barred because they were sponsoring too many people for Subclass 457 visas.

    (b)  The restaurant owner shut down the business without letting any of the employees know. During that time, in 2017, he was in India. He was in India from January to March in 2017. He received an email from his agent that this company had been barred. He was in India at the time, so he did not know what was happening. His agent told him he had to apply to the Tribunal for review. As soon as he got back to Australia in March 2017 he applied to the Tribunal.

    (c)   He was working part-time for the employer for three or four months from April in 2015.

    (d)  The employer advertised in the newspaper for cooks, chefs and a manager. He rang the employer first and then went and met him. He told him he could start. He (the applicant) told the employer he was looking for sponsorship and the employer said as long as he was committed to work for a certain period of time to run the restaurant, that was ok. He (the applicant) showed him details of his previous experience, other restaurants he had worked for in Brisbane, and his qualifications. The employer agreed and then he asked him (the applicant) to do a trial. He (the applicant) worked for one or two days and the employer said yes. The restaurant was at Mount Tamborine and he (the applicant) was living in Brisbane at the time but he (the applicant) kept checking with the employer from time to time. He spoke to his agent, who he thinks also was doing work from the employer. He then applied for the visa and within a month the nomination was approved.

    (e)  His last contact with the employer was in 2016. He cannot remember exactly but it was way before the company was barred.

    (f)    On one occasion he asked his employer why there were so many people working for him on Subclass 457 visas and asked him how he could afford them all. The employer told him that he said that he was going to open a new restaurant at the Gold Coast and that he would need him (the applicant) to stay at the Mount Tamborine restaurant and the others were going to go to the Gold Coast. He (the applicant) was the only one applying in the Direct Entry stream.

    (g)  The last time he worked for the employer was in the eighth month of 2015, August 2015.

    (h)  Since the nomination was granted in September 2014, he was then expecting everything to be cleared within two to three months, or at least within six months. He (the applicant) approached the employer and said that he could start working for him as the nomination had been approved. He was working there part-time. After six months, he asked his migration agent to check on his visa application. When the visa application was ultimately refused – he thinks it was in February or March 2017, he was in India at the time.

    (i)    The Tribunal discussed with the applicant that prior to refusing the visa, the Department wrote to the applicant, on 27 February 2017, giving him an opportunity to comment on or respond to information that there was adverse information before the Department about the employer. The Tribunal noted that the delegate’s decision records that the applicant did not respond to that invitation. The applicant responded that he was in India from 10 January 2017 to March 2017. He received an email from his agent saying that the company had been barred and that he needed to come back to Australia in time to lodge an application within 21 days. He does not know about responding to the Tribunal. He hired an agent to do all those things for him because he is not an expert. He relied upon his agent.

    (j)    The Tribunal then discussed with the applicant that there was adverse information about the employer, as discussed, such that he would not meet a criterion for the visa unless the Tribunal could be satisfied that it was reasonable to disregard that information. The Tribunal indicated that it would take into the history of the visa application as advised by the applicant and asked if there was anything further the applicant wished the Tribunal to take into account in this regard.

    (k)   He finished his studies in 2012 and after that he was on a temporary visa. When he approached the employer in 2014, he was looking to possible settle down in Australia or to return to India. In 2012, he was married and in June/July 2012, his wife came to Australia. They were planning on how to proceed with their life. They decided if the opportunity was available to them to get a visa in Australia, they would apply and see what happened towards making a future in Australia. He then applied in 2014 and did everything from his side that he could.

    (l)    Since he has returned to India, in 2018, there were a number of family issues. He was also going depression because the visa application had been going on since 2014. There was pressure from his family or his wife. He did not know what was happening, so he did not know what to do for his future. Last year he went to south India to learn some yoga and meditation to keep himself calm. That was a volunteer thing for seven months. He then completed yoga teaching training program. He did that from July to December 2019 because he was still waiting to hear what was happening in relation to his visa application in Australia. He is now working as a yoga teacher and is qualified to teach yoga anywhere the world. However, he mainly did the yoga for his personal self.

    (m) The Tribunal also discussed with the applicant that there was another criterion required to be met for grant of the visa, which had not been previously considered by the delegate, in relation to which the Tribunal had concerns. The Tribunal noted that that requirement was that the position with the nominating employer is still required to be available to the applicant and that if the position is no longer available, no matter if all other requirements for the visa were met, the Tribunal would have to affirm the decision to refuse to grant the visas on the basis that the position is no longer available. In this regard, the Tribunal noted that the applicant had not been in contact with the employer since 2016 and the applicant’s evidence was that his understanding was that the employer was no longer in business. The Tribunal asked the applicant if he wished to respond to that concern raised by the Tribunal. The applicant responded that he is not sure what the employer’s position now is and he cannot understand why the employer did so, but he closed down the business. An employee never gets to know the background, and about the books, of the employer. He does not know what happened to the employer. Maybe he opened another restaurant on the Gold Coast and that put him under pressure money advise. The Tribunal noted that whatever the reasons that the employer closed down the restaurant, if the business is closed and the position is no longer available to him (the applicant), one of the requirements for the visa cannot be met. The applicant However, he (the applicant) has not been given a chance to find another position and on the basis of that he applied to the Tribunal. If he was given a chance, he would be able to find another position.

    (n)  The applicant said that the reason he applied to the tribunal is that he did not know all the intricacies about the law that the Tribunal has now explained. He said that his concern now is that it has taken six years to get to this point with the Tribunal and the position is no longer available and he cannot work in the position now because the business is no longer continuing. However, from his side it has taken six years to get to this point from when he applied for the visa in 2014, and three years has now passed since he applied to the Tribunal. He has had to go through all these things and has had to wait six years.

    (o)  The applicant sought advice from the Tribunal as to what he could do if the visa was refused and what he could do, from offshore, then. The Tribunal discussed with the applicant that if he did not receive a favourable decision from the Tribunal, he would be advised of his review rights with the information that would be sent with the decision. The Tribunal noted that any such right of review would also be limited to considering whether the applicant meets the requirements for the visa application the subject of the Tribunal’s review, and that his circumstances overall, including whether he should be given another visa or another chance, could not be taken into account. The Tribunal noted, however, that it is not the role of the Tribunal to provide migration or other advice to the applicant and it is a matter for him what advice he might seek independently, including as to whether he has other visa options.

13. The second-named applicant told the Tribunal that they had been waiting for six years and it is not the applicant’s fault. He had received all the certificates and everything he needed. They were just waiting. Whatever problems the nominating employer had, was not the applicant’s fault. She and the applicant need to be settled for them to be starting to have a family and they have not known what to do because they have been waiting for six years.

    Adverse information

14. The Tribunal has considered the applicant’s evidence and notes the information in the delegate’s decision that a two-year monitoring sanction came into effect on 28 November 2016 for the Xiamen International Pty Ltd (the applicant’s nominating employer in relation to the visa application).

15. The Tribunal finds that this sponsorship bar falls within the definition of adverse information as the sponsoring employer, being the nominator, has been subject to an administrative action for the purposes of r.1.13A(c).

16. It follows that there is adverse information known to Immigration about the sponsor.

17. As the Tribunal has found that adverse information is known to Immigration about the nominator it must consider whether it is reasonable to disregard this information. In this case, the Tribunal must consider whether it is reasonable to disregard the sponsorship bar applicable to the applicant’s sponsor.

18. Under Departmental policy, factors which may be taken into account in deciding whether it is reasonable to disregard the adverse information include but are not limited to:

    (a)  the nature of the adverse information

    (b)  how the adverse information arose, including the credibility of the source of the adverse information

    (c)   in the case of an alleged contravention of a law, whether the allegations have been substantiated or not

    (d)  whether the adverse information arose recently or a long time ago whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur

    (e)  information about relevant findings made by a competent authority in relation to the

    (f)    adverse information, and the significance attached by the competent authority to the adverse information.

19. The Tribunal has taken into account the applicant’s evidence and submissions including that the applicant first applied for the visa in 2014 and applied to the Tribunal in 2017 and have been waiting for six years, and that the applicant may have received incorrect migration advice from his agent. Additionally, the Tribunal took into account that the position the subject of the applicant’s nomination is no longer available. Having had regard to all of these matters, the Tribunal does not consider it reasonable to disregard the adverse information about the applicant’s nominator.

20. Clause 187.223(4A) is therefore not met as required.

    Availability of position

21. As canvassed with the applicant at hearing, the evidence before the Tribunal is that the applicant’s nominating employer is no longer in business. As regards this issue, the reasons why the position is no longer available, do not change the status that the position is no longer available. Accordingly, the Tribunal is not satisfied that the position is still available to the applicant and the Tribunal finds that cl.187.233(5) is not satisfied.

    Conclusion

22. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams.

23. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

24. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams.

25. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

26. The Tribunal must also affirm the decision not to grant the second-named applicant a Subclass 187 visa as she does meet the secondary visa criterion requiring her to be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that she meets the primary visa criteria for the visa in her own right.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Susan Trotter
    Member

    
    

    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.