Parvez (Migration)

[2020] AATA 5296

Parvez (Migration) [2020] AATA 5296 (15 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr S M Parvez
Mrs Nazmunnahar Munmun
Miss Fatiha Jahan Nuha

CASE NUMBER:  1804323

HOME AFFAIRS REFERENCE(S):          BCC2016/329095

MEMBER:Cathrine Burnett-Wake

DATE:15 December 2020

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 meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(5) of Schedule 2 to the Regulations.

Statement made on 15 December 2020 at 12:22

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – position still available to applicant – change of business ownership from sole trader to partnership – department’s finding that sole trader no longer operating and position no longer available – legislative requirement that the position is the same, not the employer – members of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19; 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). 5 February 2018

2. The applicants applied for the visas on 22 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 (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.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(5) of Schedule 2 to the Regulations because the delegate found the position was no longer available to the applicant.

6. The applicants appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Malcolm Rowe, the applicant’s employer. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the position is still available to the applicant.

   Nomination of a position

9. 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.

10. 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.

11. The nomination lodged in connection with the applicant was for the position of Cook within the café Tosca Browns. At the time the nomination application was lodged Tosca Browns was operated by Mr Toby Pinhol as a sole trader business. The nomination was approved on 25 October 2016.

12. The applicant has been employed within the café known as Tosca Browns on a long-term basis and was employed prior to the nomination being lodged and approved.  He remains to this day employed as a Cook within the café known as Tosca Browns.

13. On 1 September 2016 there was a change of business structure with Tosca Browns. Mr Malcom Rowe invested into the business and the operation of the café transitioned from a sole trader arrangement to a partnership between Mr Pinhol and Mr Rowe.

14. At hearing Mr Rowe gave evidence that there were no front-end changes to the café. It continued with the same trading name, the same employees, the same menu and to any patron coming through the door they would not know there had been a backend management or business structure change. Mr Rowe told the Tribunal that in his view, the position remained the same for the applicant and that they had sought professional migration advice on the issue and were advised that there would not be any problems because notwithstanding the change in business structure, the position remained the same.

15. The Department however, made a finding that because Mr Pinhol ceased operation as a sole trader, that the business was no longer actively and lawfully operating and that the nominated position of Cook was therefore no longer available to the applicant.

16. The Tribunal notes the policy covering r.5.19 Employer Nominations and how to assess situations if there is a change in business structure/ownership. Policy is silent on change of business structure/ownership and the impact of any changes through the course of direct entry visa application processing. However, importantly it does address the issue within the temporary residence transitional stream, also covered within r.5.19.

17. Of relevance the policy states:

    4.3.6.3 Employment with the same employer is relevant to the assessment of the requirement to have worked in the same position.

    …..

    In addition, as the legislative test is whether “the position” is the same (not whether the employer is the same) [emphasis added], there may be scenarios where the business has been taken over by an unrelated company, which then nominates the visa holder, and where the visa holder continues to work in the same position in the business. In that scenario, the criterion is met if the nominee has worked in the position for the required period, regardless of the fact that the employer has changed.

    Situations where the visa holder has worked for a different employer

    To expand on the discussion above, there are three scenarios, outlined below, where sub-paragraph 5.19(5)(f)(i) can still be considered met, on the basis that the nominee has been employed in the position in relation to which the visa or visas were granted, even though the nominee has worked for more than one employer during the required period. This is because in these scenarios the nominee has effectively worked in the same position performing similar roles, irrespective of who the actual employer was. In considering the three scenarios below, it is also necessary to bear in mind the point made above about the permissibility of the position changing in cases where the occupation has changed within the ANZSCO 4 digit range.

    1.The nominator has been the sole standard business sponsor for the nominee, but the nominee has worked for either a combination of the standard business sponsor and an associated entity/ies of the standard business sponsor, or solely for an associated entity of the standard business sponsor

    This can be a reasonably common scenario as both the subclass 457/TSS visa programs provide for these employment arrangements. Where it is claimed that the nominee worked for an ‘associated entity’, the decision-maker does, however, need to be satisfied that the two relevant entities are associated in order for this requirement to be met – refer to Related and associated entities under the Corporations Act below.

    2.The nominator has not been the sole SBS for the nominee, however, the nominee has continued to work for the same business

    This may occur in situations where the business operated by the standard business sponsor has undergone restructure/takeover/sale/closure and has changed their ABN/ACN/name. This may result in a new legal entity becoming the employer and that new entity applying for a standard business sponsorship approval and nominating the visa holder(s) working in the business. This situation meets the requirement to work in the same position if:

    the sponsor is essentially the same business (e.g. same business name and/or operations, albeit restructured or under new ownership); and

    the nominee is doing the same job (e.g. same duties, working conditions and/or management structures, albeit the legal name of their employer has changed).

    ….

18. There is no dispute that the business structure of Tosca Browns and the legal entity changed during the processing of the applicant’s visa. However, the applicant has remained in the position of Cook within the café known as Tosca Browns. If following the policy principals as set out above, which considers change in ownership for the temporary residence transitional stream within r.5.19, the situation the applicant is caught in would be covered as Tosca Browns is essentially the same business. The applicant is doing the same job with the same duties, same work conditions, same co-workers, same location, even the trading name remains the same. Furthermore, Mr Pinhol remained in the business.

19. During the hearing both the applicant and Mr Rowe gave evidence that the applicant did not notice any changes, other than a different ABN appearing on his payslip.

20. The wording of 187.223(5) is the position is still available to the applicant.

21. Given the facts of the case, in the Tribunal’s view on a plain reading of cl.187.223(5) and adopting the policy intention the legislative test is whether “the position” is the same (not whether the employer is the same) it finds that the position is still available to the applicant.

22. Therefore, cl 187.233(5) 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.

24. The applications of the second and third named visa applicants are based on being a member of the family unit of the first named visa applicant who meets the primary criteria. As the Tribunal is remitting the application of the first named visa applicant the applications of the second and third named visa applicants, as members of the family unit of the first named visa applicant, should now also be reconsidered in full.

    DECISION

25. The Tribunal remits the applications 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(5) of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake
    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.