Kaur (Migration)

[2018] AATA 4288

Kaur (Migration) [2018] AATA 4288 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Balwinder Kaur
Mr Gagandeep Singh Sidhu
Mr Pahuldeep Singh Sidhu

CASE NUMBER:  1712567

HOME AFFAIRS REFERENCE(S):           BCC2016/1757795

MEMBER:Warren Stooke AM

DATE:26 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the named applicants meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

· cl.187.233(1) of Schedule 2 to the Regulations.

Statement made on 26 September 2018 at 9:22am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – contract of employment – age requirement met – Pearson Test scores – wage exceeds minimum rate of pay – job description – reporting line – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15C, 5.19, Schedule 2 cls 187.212, 187.223, 187.231, 187.232, 187.233, 187.311

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 May 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Baker – ANZSCO 351111.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination lodged by Australian Artisan Pty Ltd was refused by the delegate thereby the appointment was refused under regulation 187.233(3).

6. The applicants appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating sponsor, Mr Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has a valid nominated position to be engaged in employment for at least 2 years in Regional Australia.

10. The applicant gave evidence that she is employed by Australian Artisan Pty Ltd as a Baker and has been employed since May 2016 in that position. The nominated position was the subject of proceedings before the Tribunal on 7 August 2018 [Tribunal Case 1710748], wherein the owner provided evidence that has satisfied the Tribunal regarding the validity of the nominated position, which is the subject of this application.

11. The applicant provided evidence that she arrived in Australia in December 2008 to undertake studies in Australia and has completed a Diploma in Pastry Cooking and Diploma in Hospitality with Certificates III and IV in Cookery and Patisserie.

12. The applicant has a husband and 7 year old son, who attends the Bushell Street School in Shepparton.

    Employment will be provided

13. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application.

14. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

15. The applicant gave evidence that the nominee was subject to a contract of employment that would be in place for a period exceeding 2 years, with the current employment contract (common law) that commenced in May 2016, being formalised to provide a minimum of another two years, post the approval of the nominated position. [Tribunal Case 1710748 - Folio 202-203]

16. The applicant gave evidence that she will be employed for at least 2 years and intends to remain in Shepparton with her family

17. Accordingly, the Tribunal was satisfied in Tribunal Case 1710748 that the requirement in r.5.19(4)(d) was met.

18. Therefore, cl.187.212 is met.

    Age requirements

19. At the time the visa application is made, an applicant in the Direct Entry stream must either meet certain age requirements, or must be in a class of persons specified in legislative instrument IMMI18/043 Business visas for the relevant instrument: cl.187.231. In this case, as the visa application was made before 1 July 2017, the applicant must not have turned 50 at the time of application.

20. In the present case the applicant was aged 35 years at the time of application.

21. Therefore, cl.187.231 is met.

    English language proficiency

22. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument IMMI18/043 Business visas for the relevant instrument: cl.187.232.

23. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent English if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score, or

    ·holds a specified passport.

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI18/043

24. The applicant’s nominating sponsor gave evidence that the applicant’s EILLTS Test was greater than 6.0. The Tribunal confirmed with the DIBP record of the English speaking test undertaken in December 2016 for the applicant was 59 on the Pearson Test, which is equivalent to 6.5 on the EILTS Test.

25. Therefore, cl.187.232 is met.

    Nomination of a position

26. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

27. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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 r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

28. The nominating sponsor, in the written submissions prior to the hearing [Tribunal Case 1710748] provided the Tribunal with the following documents, which confirmed that award and statutory obligations under the provisions of the Fair Work Act 2009 are being complied with:

    ·A copy of the employment contract [Tribunal Folio 202-203];

    ·ATO Tax Assessment of the nominee for 2017-18 [Tribunal Folio – 234-236]

29. The nominating sponsor gave evidence that the underpinning award covering the nominee’s occupation is the Hospitality Industry Award 2010 and that at the time of engagement the nominee was provided with an employment statement as required under the provisions of the Fair Work Act 2009 [Tribunal Case 1710748] .

30. The applicant is paid a wage that exceeds the minimum rate of pay provided under the award and a base salary of $43,334 per annum is paid to the nominee, exclusive of superannuation as per the obligation of the contract of employment [Tribunal Case 1710748 Folio 202-203]. The Tribunal, following a review of the submitted material, which was provided prior to the hearing, has verified the remuneration paid to the nominee, including superannuation contributions.

31. The Tribunal was provided with submissions and evidence that the applicant is to be engaged as a Baker in accordance with ANZSCO 351111, as prescribed in the instrument hereunder:

    “UNIT GROUP 3511 BAKERS AND PASTRYCOOKS

    
    BAKERS AND PASTRYCOOKS prepare and bake bread loaves and rolls, buns, cakes, biscuits and pastry goods.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    ochecking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations

    ochecking the quality of raw materials and weighing ingredients

    okneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods

    opreparing pastry fillings

    omonitoring oven temperatures and product appearance to determine baking times

    ocoordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products

    oglazing buns and pastries, and decorating cakes with cream and icing

    ooperating machines which roll and mould dough and cut biscuits

    oemptying, cleaning and greasing baking trays, tins and other cooking equipment

    
    Occupations:

    351111 Baker - Prepares and bakes bread loaves and rolls. Skill Level: 3”

32. Further, the applicant provided a job description [Tribunal Case 1710748 - Folio – 204] for the nominated position, as follows:

    “Duties will include but not limited to:

    ·Daily preparation of all baked goods.

    ·Check production schedule to determine variety and quantity of goods to bake.

    ·Check the quality of raw materials.

    ·Weigh and measure ingredients using scales, measuring cups or spoons.

    ·Mix ingredients to form dough or batter using mixing machines.

    ·Roll and shape dough using rolling pins.

    ·Cut dough in uniform portions with knife, divider or cutters.

    ·Place dough in pans, moulds or on trays and bake in oven.

    ·Observe products while cooking and adjust controls.

    ·Test baked items by tasting, piercing or smelling them.

    ·Manage spoilage, turnovers and inventory of stocks and goods.

    ·Checking that equipment meets health and safety regulations

    ·Ensure product freshness and food safety.

    ·Assist and support head baker and other bakers

    ·Operate slicing and wrapping machines

    ·Assist in developing and testing new recipes”

33. The Tribunal is satisfied that the nominee will report directly to the applicant (who is also the head baker) and that the skill set required for the position is part of the short supply vocations within regional Victoria.

34. Therefore, cl.187.233(1) is met.

35. The representative made a submission that the applicant and family were genuine people and was exactly how the RSMS should work.

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

37. On the basis that the Tribunal is satisfied that the primary applicant satisfies the criteria for the granting of a 187 Regional Visa the Tribunal is satisfied that the secondary applicants satisfy cl.187.311.

    DECISION

38. The Tribunal remits the application Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the named applicants meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    · cl.187.233(1) of Schedule 2 to the Regulations.

    Warren Stooke AM
    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.