Neeraj Singh (Migration)

[2018] AATA 2711

Neeraj Singh (Migration) [2018] AATA 2711 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Neeraj Singh

CASE NUMBER:  1608988

DIBP REFERENCE(S):  BCC2014/3322054

MEMBER:Ian Berry

DATE:19 June 2018

PLACE OF DECISION:  Brisbane

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.187.233 of Schedule 2 to the Regulations

Statement made on 19 June 2018 at 11:16am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Position in Regional Australia – Site visit – Change of business location – Landlord rental issues – Temporary move of business – Applicant worked in one location – 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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (Act). The applicant (Mr Singh) applied for the visa on 4 December 2014. His application was made using the Direct Entry stream. The delegate refused to grant the visa on 6 June 2016.

2. The delegate made the decision on the basis that the position of mechanic in which Mr Singh was nominated and was the subject of his visa application, did not satisfy cl.187.233(1)(a)(i). It was not a position in regional Australia.

3. Mr Singh appeared before the Tribunal on 3 October 2017 to give evidence and present arguments.  The Tribunal also received evidence from Mr Vinnell the employer and Mr Richardson. The applicant was represented by a representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue is whether the position of motor mechanic, the subject of Mr Singh’s employer’s nomination and Mr Singh’s visa application, was located in a regional location.

6. At the time of the making of this application, the employer was operating his business from Nerang, Gold Coast Queensland, a location within regional Australia as defined under the Migration Regulations 1994 (Regulations).

7. The applicant is a motor mechanic by trade and his visa application relates to his taking up the position offered by his employer nominator (employer) as a motor mechanic (General), ANZSCO code 321211.

   Background 

8. The employer is the sole proprietor of a mechanical repair business, which at the time of making Mr Singh’s visa application, was located in Nerang.  He conducted a small business mainly dealing with customer car dealers and members of the general public in the Nerang region.

   On 2 March 2016, Departmental officers conducted a site visit at Shed 2, 19 Jaygee Court Nerang.  The information given to the Department, upon which the refusal decision was based “...the report stated that when the DIBP officers arrived at 2/19 Jaygee Crescent, Nerang, there was a sign on the front door that the address was for [deleted by Tribunal]. [deleted by Tribunal] advised the officers that Vinnell Andre had moved in Oct 2015 and showed them a hand written sign with the details on AV Automotive Shed_ 32, 219 Brisbane Rd, Labrador.(Labrador is not an RSMS location.)”

9. As a result of information received the officers then visited Shed 32, 219 Brisbane Road Labrador.

10. The Departmental officers confirmed that “AV Automotive” (the trading name of the business owned by the employer) had moved to Shed 32, 219 Brisbane Road Labrador.

11. An investigation by the Department confirmed the businesses website said it was trading from Labrador.

12. The Tribunal notes that there is reference to a full report. The above extract is that part of the report relied on in order to make its decision of refusal.[1]

    [1] D1, folio 77 – Reference is made to  a full report with a location.

13. The Department invited the employer to comment in writing.  He explained his business was conducted from two locations, firstly Unit 2, 27 Lawrence Street Nerang and Shed 32, 217 Brisbane Street Labrador. On 4 March 2016, the migration agent (presumably for the employer) wrote to the Department attaching an agreement signed on 8 December 2015. This was purported to be a sub-lease agreement with head lessee Nerang Mechanical Service, the owner was Mr David Richardson.

14. The migration agent set out the circumstances facing Mr Vinnell in changing location of his business. This change in location in October 2015 was due to circumstances beyond the employer’s control. 

15. On 4 March 2016, Mr Vinnell entered into a sublease agreement with David Richardson, a proprietor of a mechanical repair business in Nerang.  This business was at Unit 2, 27 Lawrence Street Nerang. Therefore AV Automotive was at Nerang and Labrador.

16. Mr Singh produced statements from his employer confirming his intention for the applicant to work at the Nerang workshop. Mr Singh testified that he only worked at Nerang.

17. Employer continued to seek affordable premises in Nerang so as to move his business back to a permanent location in regional Australia, more particularly where his customer base was located.

18. In summary, AV Automotive Services was in Nerang from February 2015 until October 2015 when it moved temporarily to Labrador. Then re-established the business at Nerang.

    Why did AV Automotive Services move?

19. A dispute arose between the employer and his landlord of the premises at Shed 2, 19 Jaygee Crescent Nerang.  The dispute was over firstly asbestos in the leased building; secondly, the adequacy of fireproofing and lastly the lessor imposing a rental increase. The employer sought alternative premises. The Tribunal is satisfied the issues between the lessor and lessee employer were both substantial.

20. For the time available to the employer to vacate Jaygee Court, the employer found premises in Brisbane Road Labrador, and made immediate step in making Lawrence Street available to his Nerang customer base.  He needed to do this to ensure continuity in his business.

21. His long term customers located in the Nerang region required servicing the needs, so we called upon Mr David Richardson also the owner of a small mechanical business located in Lawrence Drive Nerang and arranged a sublease of his premises.

22. Mr Singh, Mr Vinnell and Mr Richardson gave evidence to the tribunal which is summarised as follows:

    a.The applicant said he never worked in Labrador and that he only worked in Nerang.

    b.Mr Vinnell said the arrangements to move his business to Labrador and have a sublease with Mr Richardson was the only course he could take in the short term.

    c.Mr Richardson corroborated the sublease was made and to assist Mr Vinnell until his tenancy issue was resolved. 

23. The Tribunal is satisfied that the employers move to Labrador was temporary and beyond his control.  The Tribunal is also satisfied that the applicant had worked in Nerang only.

24. The Tribunal is satisfied the employer has been employing Mr Singh in accordance with cl.187.233(2).

25. There is evidence on the Departmental file of the Minister approving the employer’s nomination application: cl.187.233(3) and (4).

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.187.233 of Schedule 2 to the Regulations.

Ian Berry
Member