Patel (Migration)

[2020] AATA 3229

Patel (Migration) [2020] AATA 3229 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hareshkumar Manilal PATEL
Mrs Shwetabahen Hareshkumar PATEL
Master Jay PATEL
Master Oam PATEL

CASE NUMBER:  1722294

HOME AFFAIRS REFERENCE(S):          BCC2014/5353

MEMBER:Cathrine Burnett-Wake

DATE:15 June 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(4A) of Schedule 2 to the Regulations.

Statement made on 15 June 2020 at 1:54pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Cook – nominator received a 2-year sponsorship bar – all breaches and wage issues were rectified – sponsorship bar period has now lapsed – reasonable to disregard adverse information–decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 2.79, 2.83, 2.92, 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 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 2 January 2014. 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Cook with Katos Business Trust & Ramia Restaurant Trust, trading as the Fishermen’s Pier.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(4A) of Schedule 2 to the Regulations because of adverse information regarding the nominator. The applicant’s nominator received a 2-year sponsorship bar by the Department in 2017 owing to its identified breaches of rr.2.79, 2.83 and 2.92. The delegate decided it was not reasonable to disregard this adverse information.

6. The applicants appeared before the Tribunal via telephone on 12 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Paul Ramia the owner and operator of Fishermen’s Pier.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The nomination requirements in all streams are only met if there is no ‘adverse information’ known to Immigration about the person (or employer) who made the nomination or a person ‘associated with’ them, or it is reasonable to disregard any such information.[1]

   [1] cls 187.223(3A), 187.233(4A), 187.242(4A), as inserted by SLI 2015, No 242 and applying to all new visa applications and visa applications not finally determined as at 14 December 2015.

9. ‘Adverse information’ is defined in r.1.13A as any adverse information relevant to a person's suitability as a sponsor or nominator.

10. The Tribunal is satisfied that the sponsorship bar that Fishermen’s Pier received, constitutes adverse information pursuant to r.1.13A. The applicant provided the Tribunal a copy of the Border Force sanction decision and notification record, so is abreast of the reasons relating to the sponsorship bar.

11. The issue in the present case is whether it is reasonable to disregard this adverse information.

12. The Regulations do not provide any guidance on when it may be reasonable to disregard such information, and this will depend on the circumstances of the case. Departmental policy suggests the following factors may be relevant:

    • the nature of the adverse information;
    • whether the adverse information arose recently or a long time ago;
    • how the adverse information became known, including the credibility of the source of the adverse information;
    • whether the allegations have been substantiated or not, e.g. whether the applicant has been convicted of an offence under Australian law or investigations are ongoing;
    • whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repaying monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not recur;
    • whether the applicant has demonstrated subsequent compliance;
    • whether the conduct of concern is likely to recur;
    • information about relevant findings made by a competent authority in relation to the adverse information, and the significance the competent authority attached to the adverse information;
    • whether there are any compelling circumstances affecting the interests of Australia.

13. The policy goes on to list examples of circumstances in which it may be reasonable to disregard adverse information and circumstances in which it is unlikely to be reasonable to disregard adverse information. These lists are not exhaustive and the determination of whether it is reasonable to disregard the information is a question for the relevant decision maker, having regard to all relevant circumstances of the case.

14. Policy reasons listed for circumstances in which it may be reasonable to disregard adverse information are as follows:

    4.4.2.2 Circumstances in which it may generally be reasonable to disregard adverse information include but are not limited to:

    ·the applicant only received a ‘warning’ in relation to their conduct and there is no evidence that they have since been non-compliant;

    ·the applicant has been barred for a shorter period by the ABF (i.e. less than two years) and there is no evidence that they have since been non-compliant since the expiry of the bar;

    ·the applicant received a more serious penalty for previous action but has:

    otaken steps to negate the implications of relevant conduct or practices; and

    odeveloped practices and procedures to ensure the relevant conduct is not repeated;

    ·the applicant has an overall record of ‘good behaviour’ but is being investigated for less serious issues, following receipt of an unsubstantiated allegation; or

    ·the persons to whom the adverse information relates have no influence over the conduct of the applicant’s partnership or association (for example, silent partner).

15. At hearing the applicant provided the following reasons he wished the Tribunal to consider as appropriate circumstances to disregard the adverse information:

    • He lodged this application in 2014. It was initially refused on a different subclause relating to his qualifications. He lodged a review application to the Tribunal for this refusal, which the Tribunal affirmed. He then lodged a Federal Circuit Court (FCC) review which was remitted by consent back to the Tribunal for consideration. The Tribunal then remitted his matter back to the Department.
    • He has done nothing wrong. His employer had breached sponsorship obligations. However, the circumstances that lead to the breaches had nothing to do with him.
    • The sponsorship breaches occurred 2-years after his initial Subclass 187 visa was lodged, so if the Department had not incorrectly refused his application the first time, he would not be in this situation.
    • His employer, to his knowledge, rectified the issues they had. Including paying back employees and implementing new systems to avoid future issues.
    • The sponsorship bar of his employer lapsed last year, so they no longer have any restrictions to sponsor.
    • He is currently working for Fisherman’s Pier.
    • He is separated from his family who are stuck in India.

16. The Tribunal took evidence from Mr Ramia and provided the following reasons he wished the Tribunal to consider as appropriate circumstances to disregard the adverse information:

    • When the sponsorship breaches occurred, the day-to-day operations were overseen by George Katos, who has since left the business.
    • All breaches and wage issues were rectified, and the employees were paid back all money owing.
    • Mr Ramia took over the responsibility of the day-to-day operations of Fisherman’s Pier 3 years ago when Mr Katos left the business, given the issues that had transpired.
    • Mr Ramia has learnt a lot from the experience and has ensured no such further issues have occurred.
    • They have implemented a software solution through a product called ‘Vectron Point of Sale’ and ‘Wage Easy’ that is specific to the hospitality industry. All employees when they commence their shift ‘clock in’ through the cash register by entering their unique pin. They do the same when their shift ends and they ‘clock out’. Mr Ramia outlined that this software solution ensures that the employee’s hours are tracked and that they are paid the appropriate wage, including calculating any penalty rates and overtime.
    • His family have been in the hospitality business for over 40 years and also own and operate the Sphinx Hotel in Geelong.
    • This is the only time they have ever had an issue relating to employees and wages and conditions.
    • It is extremely difficult to attract chefs and cooks in a regional area. In the last 3 years he has been through 5 chefs/cooks.
    • He currently has vacancies for 3 chefs/cooks that he has not been able to fill.
    • His restaurant is a fine dining establishment, and there are not enough chefs/cooks based locally of the calibre to work in a fine dining restaurant. The business has in the past relied on sponsoring overseas workers to fill the gap, and having a ban impacted the business. Now the ban has lapsed, they will look to doing this once more.
    • They are in desperate need of appropriately trained and qualified chefs/cooks.
    • They support the applicant’s application and he is currently working for Fisherman’s Pier.

17. The Tribunal has considered the reasons put forward by both the applicant and Mr Ramia on what they contented to be appropriate circumstances to disregard the adverse information.

18. The Tribunal has considered these reasons, and is of the view, that in the circumstances it is appropriate to disregard the adverse information. Particularly persuasive was Mr Ramia’s frank evidence. He conceded that the business had breached its sponsorship obligations and discussed the businesses previous shortcomings, what he learnt from the experience and how they have addressed the issues, so they won’t happen again. Mr Ramia outlined that he was remorseful and regretted the situation they had found themselves in as it had impacted their ability to utilise the temporary work visa system, which they previously relied on given the skill shortage for fine dining chefs/cooks. Mr Ramia gave assurances, that as he was now in control of the day-to-day operations, and because of the software solutions they had implemented, that the business would not fall foul of such shortcomings again regarding wage payment issues.

19. The Tribunal is satisfied that the business has taken steps to negate the implications of relevant conduct; and developed practices and procedures to ensure the relevant conduct is not repeated.  The Tribunal has considered the passage of time since the breaches and that the sponsorship bar period has now lapsed. It has also considered the overall record of ‘good behaviour’ of the nominator and the difficulty it has in recruiting and retaining appropriately skilled and qualified chefs/cooks and the fact that the visa applicant is in their employment. All of which are in favour of the applicant and reasons to disregard the adverse information.

20. The Tribunal is satisfied pursuant to 187.233(4A)(b) that 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.

21. Accordingly, cl.187.233(4A) is met.

22. The Tribunal notes that it does not have jurisdiction to review the decision to refuse the second, third and fourth-named applicants respectively a subclass 187 visa because they were not in Australia at the time the application for review was lodged.

    DECISION

23. 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(4A) of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake
    Member