Kamboj (Migration)

[2021] AATA 4280

Kamboj (Migration) [2021] AATA 4280 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Navneet Kamboj
Ms Suman Kamboj
Miss Hiral Kamboj

CASE NUMBER:  1829687

HOME AFFAIRS REFERENCE(S):          BCC2017/2317164

MEMBER:Warren Stooke AM

DATE:3 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant and secondary applicants meet the following criteria for a Subclass 457 visa:

·cl 457.223 of Schedule 2 to the Regulations;

·cl 457.321 of Schedule 2 to the Regulations.

Statement made on 3 November 2021 at 3:01pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 29 June 2017.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). One of the criteria to be satisfied at the time of decision is cl 457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl 457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl 457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl 457.223.

4. The delegate refused to grant the visas on 29 September 2018 on the basis that cl 457.223(4)(a) was not met because the applicant did not have an approved standard business sponsor for the position of Chef – ANZSCO Code: 351311.

5. The applicants appeared before the Tribunal on 3 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Semir Elmazi, the nominating sponsor.

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

7. The applicant confirmed to the Tribunal that he had received and read the delegate’s decision and provided a copy to the Tribunal with his review application.

8. The applicant stated that he understood the application had been refused because the Department had sought additional documents.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4) of an approved standard business sponsor for the occupation of Chef – ANZSCO Code: 351311.

11. The applicant provided evidence that he had completed Certificates III and IV in Commercial Cookery; a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management.

12. The applicant provided evidence that he was employed on 15 May 2015 on a salary of $54,000 and that his current salary was $55,000.

13. The applicant stated that he is employed full-time and is the main Chef of 3 employees.

14. The applicant stated that he belongs to Hostplus for the purposes of superannuation.

15. The applicant provided evidence that he has a wife and 13 year old daughter with him in Australia, as dependents.

    Witness Evidence – Mr Semir Elmazi (Restaurant owner)

16. The nominating sponsor provided evidence that the business was first registered on 24 September 2013 as the Trustee for Elmazi Family Trust, which is now trading as the ‘Second Wife’ restaurant (operating from 13 February 2017) with an ABN: 21 510 610 862.

17. The employees of Second Wife and ‘Strange Secret’ are engaged under the Restaurant Industry Award 2010.

18. The nominating sponsor provided evidence that the current restaurant is named ‘Strange Secret’ and is located at 109 Dandenong Centre, Dingley Village and is subject to ABN: 90 609 162 290 as a joint partnership and that this restaurant was started in 2018 as a café for breakfast and lunch as a 7 day operation by E & K Development Corporation, which is an entity within the Elmazi Family Trust.

19. The nominating sponsor stated that he runs the front of house and that his partner controls the accounts. He also stated that the restaurant has 72 seats both internal and external and that the cuisine is modern Australian and Mediterranean, with 13 employees including the applicant.

20. The nominating sponsor provided an organisation chart that included: the owner; a manager; and 7 staff that included the position of chef.

21. The nominating sponsor provided a copy of the contract of employment to the Tribunal for the applicant that is dated 15 July 2017 to be engaged by ‘Second Wife’ Box Hill on a salary of $54,000 for a permanent position of at least 4 years. A further contract of employment dated 28 August 2021 was provided to the Tribunal with an hourly rate of $28.00 per hour from 16 November 2021.

22. The nominating sponsor provided evidence that the position was advertised with Advent Adzuma between 8 May 2017 and 29 May 2017 and details of a short list from Jora where 5 persons were shortlisted and 3 persons were interviewed, including the applicant.

23. The nominating sponsor provided a certification as to whether or not the person has engaged in conduct that constitutes a contravention of s 245AR(1) of the Act: reg 2.73(4B), which was dated 31 May 2017.

24. The nominating sponsor provided a position description for the nominated position of Chef that included the duties outlined in ANZSCO occupation of Chef, together with duties relating to Health and Safety and the training of staff.

25. The nominating sponsor provided evidence of superannuation contributions for the applicant to Hostplus, as required by the SGC scheme.

26. The nominating sponsor stated that he currently runs 3 cafes and that with the current situation it is difficult to find staff. He stated that to lose Mr Kamboj would be a disaster.

27. The nominating sponsor stated that he was currently advertising for a chef and that he can’t recruit a qualified person.

    Requirement for an approved nomination

28. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

29. On 3 November 2021, the Tribunal, as presently constituted, made a decision in Case Matter 1827598, which set aside the delegate’s decision not to approve the nomination and substituted a decision that the nomination is approved.

30. On this basis the Tribunal is satisfied that the applicant has a standard business sponsor for the occupation of Chef – ANZSCO 351311.

31. For these reasons the requirements of cl.457.223(4)(a) are met.

32. On the basis that the Tribunal is satisfied that the primary applicant satisfies the criteria for the grant of the visa, the Tribunal is satisfied that the secondary applicants are members of a family unit that meet the requirements for the grant of a visa, as provided in cl.457.321.

33. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

34. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant and secondary applicants meet the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(a) of Schedule 2 to the Regulations;

    ·cl 457.321 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member

    
    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.