KAUR (Migration)

[2022] AATA 3359

KAUR (Migration) [2022] AATA 3359 (9 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SUKHPREET KAUR
Mr AMRINDER SINGH
Mr GURTAJ SINGH

REPRESENTATIVE:  Ms Prahbjit Kaur (MARN: 1574834)

CASE NUMBER:  1908639

HOME AFFAIRS REFERENCE(S):          BCC2018/638974

MEMBER:Stephen Witts

DATE:9 August 2022

PLACE OF DECISION:  Melbourne

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

·cl 187.233 of Schedule 2 to the Regulations; and

·cl 187.223 of Schedule 2 to the Regulations.

Statement made on 09 August 2022 at 9:26am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 7 February 2018. 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of cook ANZSCO code 3511411.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 2 August 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominee, Titulaer Pty Ltd.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant is the subject of an approved nomination.

12. The Tribunal notes that it has been provided with the relevant delegate’s decision by the applicant. In this decision it was stated that the business commenced trading on 1 March 2017 and that at the time of decision it employed eight Australian employees and one foreign employee, it was noted that the business was trading as Wonthaggi Hotel. The delegate noted that for some time the business was closed, and that the organisation chart provided in the application noted that the business already employed a head chef, sous chef, chef and two apprentices. The delegate also commented that it had been provided with different versions of profits and loss statements for similar periods and that inconsistent and incomplete financial information was provided.

13. The Tribunal notes that evidence was provided by the applicant prior to the hearing. This included a copy of the company’s registration material indicating it had an ACN number 616072158 and that it was registered in November 2016. It was stated that the officeholders were Bradley and Paradee Titulaer.

14. The Tribunal notes that some financial information was provided including BAS statements, activity statements and other material. Included were profit and loss statements indicating that for the period July 2019 to June 2020 it had a total income of approximately $1.3 million, salary expenses of approximately $400,000 and a loss of approximately $400,000; in the period July 2020 until June 2021 it had a total income of approximately $2 million, salary expenses of approximately $500,000 and a loss of approximately $400,000 ; for the period July 2021 to January 2022 the business had a total income of approximately $1.6 million, wages and salary expenses of approximately $300,000 and a net profit of approximately $12,000.

15. The Tribunal notes that an organisation chart was provided stating that there was a director in the business, Mr Titulaer, a full-time restaurant manager on a 187 visa subject to a separate application before the Tribunal, a head chef designation unknown, two chefs who are Australian citizens, two cooks who are on temporary visas, one of which is the nominee and the other who is also the subject of a separate application before the Tribunal, an apprentice chef who is an Australian citizen, seven waiters all of whom are Australian citizens and five bar and bottle shop attendants, all of whom are Australian citizens.

16. That a genuine precision letter was provided stating that the applicants bought the business in November 2016 that they provide dinner and lunch services to customers that’s mainly focused on Australian cuisine, that it is situated in Wonthaggi, a rural centre in regional Victoria, and that the position of Cook is genuinely needed.

17. The Tribunal notes that a letter was provided dated 11 March 2022 stating that the nominee has been employed as a cook in the business on a part-time basis from November 2020 until now, that for a period of time she was holding a student visa and that since August 2021  she has been working as a cook preparing food and vegetables, serving meals, assembling cooking ingredients, maintaining a sanitary kitchen, remaining knowledgeable about the restaurant menu, operating kitchen equipment, ensuring that the food area stopped and organised, ensuring that the service line is fully stocked and presented appropriately, planning menus and estimating food requirements, working alongside other team members to ensure a streamlined service, maintaining a clean, tidy and organise workstation and assisting in the training and development of staff.

18. The Tribunal notes that a statement was provided by the applicant stating that the terms and conditions of employment of the nominee would be no less favourable than those provided to an Australian citizen or permanent resident and that an average base salary of a cook is $56,702 per annum and that the nominee is currently being paid $56,000 per annum plus superannuation.

19. The Tribunal notes that a statement was provided by the applicant’s representative dated 17 March 2022 stating that the nominee is well-qualified as a cook, and that the business needs qualified and experienced cooks.

20. The Tribunal notes that also provided with other material containing to the business including employment material, payslips, certifying body advice, bank statements, and other material.

21. At the hearing the Tribunal had a discussion with the nominator in the nominee regarding the application.

22. The nominator stated that the nominee has worked in the business on a full-time basis as a cook since mid-2020. The Tribunal discussed the nominator’s business interests with him noting that he also owns a function centre which hosts approximately 25 weddings per year in a different location to the hotel and that he owns two commercial buildings one of which is rented out to a bakery and another that he operates running an import and export business with his wife and that therefore he can only spend a day or so in the hotel business a week and that he relies on the nominee to work for him as a cook in the restaurant part of the business.

23. The Tribunal also had a discussion with the nominator regarding his ongoing profitability in the hotel business noting the concerns expressed by the Department about his previous evidence provided to it in regard to the application. The nominator provided evidence that he had made a mistake and that some of the evidence provided was inconsistent and that it was his responsibility that this occurred but that his business has survived over the last few years despite the pandemic and that it is trading and solvent and that the nominee continues to work in the business full-time and that he would anticipate continuing to run and expand this business over the next few years now that the pandemic is hopefully behind him and that his function centre also is back up and trading together with his relatively new import export business and that he genuinely needs the nominee to work in the business carrying out the above duties and responsibilities on a permanent basis.

24. The nominee stated that she first came to Australia in 2008 on a partner visa and that she then subsequently had a student visa where she completed certificate IV level qualifications in hospitality and commercial cookery and also completed a diploma level qualification in business in 2013. She stated that she worked in the hospitality sector for a few years on a full-time basis and that she has now been working in the nominator’s business for some time. She is here with her husband and son.

25. The Tribunal has considered the above noting that the business has continued to operate throughout the last few years, and that evidence was provided indicating that it is successfully trading on an ongoing basis and that the nominee has now worked in the business full time for 2 years and that the nominator has provided sufficient evidence that the nominee is working and will continue to work as a paid employee in the above position under the nominator’s direct control.

26. On that basis the Tribunal finds that the applicant is the subject of an approved nomination.

    Nomination of a position

27. 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.

28. 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 reg 1.13A and reg 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.

29. The Tribunal finds that the applicant has met the above requirements.

30. Therefore, cl 187.233 is met.

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

    decision

32. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant and the second named applicants meet the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 Schedule 2 to the Regulations; and

    ·cl 187.223 of Schedule 2 to the Regulations.

    Stephen Witts
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.