MANDEEP KAUR (Migration)

[2018] AATA 2842

MANDEEP KAUR (Migration) [2018] AATA 2842 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  MANDEEP KAUR
Mr HARKAMAL JIT SINGH

CASE NUMBER:  1706641

DIBP REFERENCE(S):  BCC2016/1056867

MEMBER:Karen McNamara

DATE:25 June 2018

PLACE OF DECISION:  Sydney

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

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 25 June 2018 at 9:57am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Cook – Subleased premises to company barred by department – Use of business name by another entity – Reasonable to disregard information – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65, 338(2), 347

Migration Regulations 1994, Schedule 2, rr 5.19(4), 1.13A, 1.13B, 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 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 11 March 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations because the nomination of a position in relation to the applicant had not been approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   Nomination of a position

8. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

9. 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.

10. The nominating employer, Avneet Holding Pty Ltd applied to the Department of Immigration for approval of a nomination in relation to the position of Cook. That nomination was refused by the Department and consequently the applicant’s visa application was refused.

11. Avneet Holding Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No. 1703198). On 25 June 2018, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

12. Based on the evidence before it, the Tribunal is satisfied that:

    ·The person who will employ the applicant in the nominated position (that is Avneet Holdings Pty Ltd), is the person who made the nomination.

    ·Avneet Holdings Pty Ltd nomination for the position of Cook with the restaurant Tandoori Dhaba Tumbi Umbi has been approved by the Tribunal and has not been subsequently withdrawn.

    ·The  nominator advised at hearing the position is still available to Mrs. Kaur; and

    ·The visa application was made at the same time as the employer nomination and was therefore not made more than six months after the nomination was approved.

13. There is evidence before the Tribunal regarding the nominator that may be considered adverse.  This information was put to the nominator, Mr Sukhdev Bansal at the hearing and he was provided opportunity to respond. The information relates to notation on the Department’s file concerning the subleasing by the applicant of the restaurant’s premises from a company called Montoora Holdings Ltd. This company was barred in 2014 as a sponsor for 3 years. The Director of Montoora Holdings Company Ltd, Mr Mohammed Rahid Mondal is also the director of a company PDM (Aus) P/L which according to the Department’s notes is claiming to operate from the Tumbi Umbi premises.

14. At hearing Mr Bansal advised that he knew Mr Mondal but Mr Mondal had no involvement with Avneet Holding Pty Ltd.  Mr Bansal advised that he was not aware of Mr Mondal’s problems with the Department.  Mr Bansal was not aware of another entity sub leasing or operating from the Tumbi Umbi premises.

15. The Tribunal asked Mr Bansal if he was aware of any other entity using the business name Tandoori Dhaba Tumbi Umbi, Mr Bansal said no. The Tribunal advised Mr Bansal that it had in its possession an internet search on Aubiz.net that indicates that a company callled PDM (Aus) Pty Ltd had listed under the heading “other business names” inter alia Tandoori Dhaba at Tumbi Umbi. Mr Bansal was invited to comment and responded that he was not aware of this and could offer no explanation as to why another entity would have Tandoori Dhaba at Tumbi Umbi listed as their business name.

16. ASIC records indicate there is no common directorship between the two entities of which Mr Mondal is director and Avneet Holding Pty Ltd.  ASIC records confirm the business name Tandoori Dhaba at Tumbi Umbi was registered by Avneet Holdings on 20 March 2014. 

17. The Tribunal accepts that it is plausible that members of the Indian restaurant community engage with each other.  Mr Bansal was open in acknowledging he knew Mr Mondal and that he knew nothing of the entity PDM operating from the Tumbi premises.  Mr Bansal openly advised the Tribunal about the leasing arrangement with Mr Mondal. The Tribunal also notes the period of the bar placed on Montoora Holdings has now expired.

18. ASIC records indicate there are no shared directorships amongst the entities. The Tribunal places weighting on the ASIC records in supporting evidence provided by Mr Bansal to the Tribunal, that Mr Mondal is not involved in the operations of the restaurant.  The Tribunal regards this as an important factor in disregarding adverse information about a person associated with the nominator.

19. Accordingly, the Tribunal is satisfied it is reasonable to disregard the information.

20. On the basis of the above, the Tribunal finds that the requirements of cl.187.233 are met.

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

22. Mr Harkamal Jit Singh applied on the basis of being a member of the family unit of the first named applicant, Mrs Mandeep Kaur. Mr Harkamal Jit Singh’s application will be determined by reference to the outcome of Mrs Mandeep Kaur’s application on remittal to the Department for consideration.

    DECISION

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

    ·cl.187.233 of Schedule 2 to the Regulations.

    Karen McNamara
    Member