Roy (Migration)

[2019] AATA 3399

Roy (Migration) [2019] AATA 3399 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Chandrama Roy
Mr Tuhinadry Chowdhury

CASE NUMBER:  1832418

DIBP REFERENCE(S):  BCC2016/4298182

MEMBER:Ian Berry

DATE:21 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa.

Statement made on 21 June 2019 at 12:06pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – nomination refused – no approved business nomination – decision under review

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994(Cth), rr 1.13, 5.19, Schedule 2, cls 187.233, 187.311

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 on 17 October 2018 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (the ‘Act’).

2. The visa applicant (‘applicant’) applied for the visa on 20 December 2016. The delegate refused to grant the visa on the basis that the applicant’s nominator Tandoori Place on Coolangatta Pty Ltd had the nomination application refused for the reason that the Minister had not approved the nomination: Cl187.233(3).

3. The applicants appeared before the Tribunal on 19 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, the applicant’s spouse and the nominator’s director Ms Dipa Singh ‘Ms Singh’. The Tribunal hearing was conducted as a combined hearing with the nomination application.   

4. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant has an approved nomination and satisfies cl.187.233(3) of Schedule 2 to the Migration Regulations.

7. The applicant gave evidence of her not currently being employed by the nominator.  She has not been employed at the Banora Point restaurant located in regional New South Wales.  The nominator’s representative Ms Singh said that the restaurant was closed when the lease had expired.  It was her intention to have the applicant re-employed as a cook, in the nominator’s business once the applicant’s visa application is approved.

8. The applicant is a RSMS 187 visa applicant in the direct entry stream and is a cook by occupation and identified in the nomination application as a cook.  The director Ms Singh corroborates the skills, work commitment and experience of the applicant in completing her duties as a cook (ANZSCO[1] 35111).

   [1] Australian New Zealand Standard Classification of Occupations

9. The Tribunal explained to the applicant of the difficulty facing her:  There is not a restaurant, in a regional area, at which she has been identified as working as the cook.  It is not the position where she can be approved and then for a restaurant to be reopened and for her to then take up the position as the cook.

10. The circumstances relating to the nominator have changed dramatically since the refusal of her visa application by the Minister’s delegate on 16 August 2018. At the time of the visa application lodgement the nominator had employed four Australian citizens or permanent residents with 3 foreign employees of which 2 were UC 457 temporary business visa holders.

11. On 5 June 2019 the Tribunal wrote to the applicant under s359A of the Act, informing her that the Tribunal was in possession of information that indicated that she did not have an approved business nomination in relation to her visa application. The Tribunal noted that cl.187.233(3) of Schedule 2 to the Regulations required an applicant to have an approved business nomination, and that information may be a reason, or part of a reason, for the Tribunal to affirm the Delegate’s decision to refuse to grant the applicant a visa if the applicable criteria were not met.

12. The applicant provided a written response to the Tribunal on 18 June 2019. The applicant submitted the following to the Tribunal:

    ‘With reference to your above letter, following is my response to the information provided in your above letter;

    I got employed with Tandoori Place on Coolangatta Pty Ltd at its Banora Point address in August 2015. I started working as a kitchen hand and gradually developed a knack of cooking. At that time I also started my training in learning how to make different types of curries. During that time I got enrolled in a course of Commercial cookery. Around end of 2016, my employer Ms. Dipa Singh was looking for a full time cook in her Banora Point restaurant. As she could not find any local person to fill up that position and I also expressed my interest to work in that position, she appointed me in that place.

    In December 2016 I applied for the RSMS visa. At the time of lodgment, we were told by our lawyer that the processing time is 10 – 12 months, i.e. around December 2017 we could expect an outcome. After waiting for another 9 months, in September 2018 our application was opened and was rejected straightaway without asking for any further documents. At the time of refusal, i.e. in September 2018, I was working full time at the said restaurant at Banora Point though I had no such condition to work prior to the visa approval. Thereafter I continued my employment with the business even after refusal till January 2019 considering the need of the business. In the end of January of this year, me and my husband Tuhinadry went to India for 28 days. In the meantime in February 2019, the lease of the restaurant expired. My employer was in talks with the real estate about renewing the lease. However, as the owner of that place decided to increase the rent to an exorbitantly high level, Ms. Singh decided to move the restaurant to a nearby location in Banora Point with a rent that is viable for the business and she was also in the process of finding a new place in the same area. During this time, we got a letter from the tribunal intimating us about a hearing date. As Ms. Singh had not yet found a suitable place for her business, her appeal was not granted. Under this situation, our humble submission is to consider our case sympathetically and allow Ms. Singh some more time to find a suitable place.

    All along my employment with Ms. Singh, I’ve been extremely hard working. I’ve put all my efforts into my work and at some point I’ve single handedly looked after the restaurant. My husband Tuhinadry arrived in this country in 2012 and I came in 2013. Since then we’ve been living here and not seen our families back in India till January 2019. Given the situation and need of the business I was working in the restaurant without much time off. In the approximately last 4 years, I only had some time off when I had some serious health issues. I’d also like to mention that we did not start our own family because of the uncertainty we’re in. Both me and my husband have worked really hard since the day we arrived in this country and have integrated very well in the local community. We’ve put a lot of efforts and worked with dedication to get a better life in this beautiful country than what we had in India. Since the time we lodged our visa application we’ve been through a lot of stress both emotionally and financially where one of the reason is delay in processing our application. However, we remained hopeful that we’d get a positive outcome as I’ve given my hundred percent in my work and believed our efforts and hard work would not go in vain.

    In a nutshell, I’d like to mention once again that I’m the victim of the circumstances where I did everything correctly. I completed my required certificate IV course, did my IELTS and scored 7.5 overall and worked really hard for approximately 4 years in the restaurant and also willing to stay and work in regional area. It would be emotionally very devastating for us if we have to go back to India and start afresh after staying in this country for more than 6 years.

    My earnest request would be to please consider our case sympathetically and give us a fair decision.’

13. The Tribunal has considered the applicant’s response to the Tribunal’s invitation to comment on or respond to information that might form the reason or part of the reason to affirm the Department’s decision to refuse to grant the applicant a visa. The Tribunal acknowledges the applicant’s employment history at the Tandoori Place on Coolangatta Pty Ltd’s Banora Point location. The Tribunal further acknowledges that the applicant’s workplace was closed due to an inability for the nominator to agree with the landlord’s large increase in rent. The Tribunal acknowledges the applicant’s request to hold a decision in abeyance until the applicant’s nominator is able to re-open the business. However, the Tribunal considers that if the applicant does not meet the applicable criteria to be granted the visa, the Tribunal must make a decision to affirm the Department’s decision to refuse the applicant the visa.

14. Despite the above, the applicant’s response does not provide any demonstration that the applicant has an approved business nomination or meets the applicable criteria.  

15. The Tribunal finds that the applicant does not have an approved business nomination. Accordingly, the Tribunal finds that the applicant does not meet the requirements of cl. 187.233 of sch.2 to the Regulations.

16. An application for a Regional Sponsored Migration Scheme (Subclass 187) visa has been made by the applicant. Under the Migration law, a visa cannot be granted unless the relevant legal requirements that are specified in the Act and the Regulations are satisfied. Clause 187.311 of Schedule 2 to the Migration Regulations 1994 has not been satisfied.

17. Clause 187.311 provides:

    The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)      made a combined application with the primary applicant

18. Mr Tuhinadry Chowdhury is the secondary applicant who relies on the applicant being the holder of a Subclass 187 visa. As the applicant is not the holder of that visa, the secondary applicant does not satisfy clause 187.311.

19. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream has not been met, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa.

    Ian Berry
    Member