Kumar (Migration)

[2019] AATA 3156

Kumar (Migration) [2019] AATA 3156 (22 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sumit Kumar

CASE NUMBER:  1701710

HOME AFFAIRS REFERENCE(S):          BCC2016/124506

MEMBER:Warren Stooke AM

DATE:22 July 2019

PLACE OF DECISION:  Melbourne

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

·cl.187.223 of Schedule 2 to the Regulations; and

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 22 July 2019 at 10:33am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application now approved by Tribunal – 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 Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 January 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook – ANZSCO: 351411.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223, 187.233 and 187.242 of Schedule 2 to the Regulations given that the applicant did not have an approved standard business sponsor.

6. The applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s nominating sponsor.

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

8. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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 applicant has an approved standard business sponsor.

11. The applicant gave evidence that he moved from Brisbane to Perth in July 2012 and that he was not a student but subject to a TR visa. He stated that he had qualifications in Hotel Management; Commercial Cookery – Certificate III and a Diploma of Business Management

12. The applicant stated that he was a tandoor chef and made nans and appetizes. He said that he also does other things in the kitchen, including receiving supplies and meat, together with cleaning and the supervision of new people.

13. The applicant gave evidence that he works 40 hours per week with a start at 11.00am until finishing at 9.30pm and the business closes at 10.30pm. He stated that he has a 2.0 hour break from 2.30pm.

14. The nominee gave evidence that he has been working in the business for 6 to 7 years and that he needs this very badly, and that he was now 31 years old and single

    Nomination of a position

15. 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.

16. 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.

17. The Specification of Occupations for subclass 187 visas includes at Item 330 for Regional Employment, the position of cook. The ANZSCO descriptor is as follows:

    “UNIT GROUP 3514 COOKS

    
    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    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:

    §examining foodstuffs to ensure quality

    §regulating temperatures of ovens, grills and other cooking equipment

    §preparing and cooking food

    §seasoning food during cooking

    §portioning food, placing it on plates, and adding gravies, sauces and garnishes

    §storing food in temperature controlled facilities

    §preparing food to meet special dietary requirements

    §may plan menus and estimate food requirements

    §may train other kitchen staff and apprentices

    Occupation:

    351411 Cook

    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3”

18. The applicant’s nominating sponsor provided evidence of the scope of duties undertaken by the incumbent in the nominated position [Tribunal Case File: 1620278 - Folio 78], which includes the application of the applicant’s skills and competencies obtained through studies in Commercial Cookery, at the Certificate III level and a Diploma in Hospitality, together with formal on-the-job experience of more than six years.

19. Further, the nominating sponsor, confirmed the applicant’s experience and described his duties in preparing for meals, including the pre-preparation work and kitchen support to the restaurant chef. The nominee will be under the direct control of the sponsor, as the business’s chef. Further, the Tribunal is satisfied that the scopes of duties to be performed by the applicant are consistent with ANZSCO - 351411.

20. The applicant, who has worked in the business since July 2012, has a Bridging visa without work restrictions and works full-time. The terms and conditions of employment pertaining to the nominee are contained in the contract of employment [DIBP Case File: 1620278-Folio 97].

21. Further, the Tribunal in Case File:1620278, which related to the applicant’s standard business sponsor, made a decision to ‘substitute a decision approving the nomination of the applicant’. As such, the Tribunal is satisfied that the applicant meets the criteria pertaining to cl.187.223; cl.187.233 and cl.187.242.

22. Therefore, cl.187.233 is met.

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

    DECISION

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

    ·cl.187.223 of Schedule 2 to the Regulations; and

    ·cl.187.233 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.