Saini (Migration)

[2022] AATA 2063

Saini (Migration) [2022] AATA 2063 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Ajay Saini

Ms Jasbeer Kaur

CASE NUMBER:  1835415

HOME AFFAIRS REFERENCE(S):          BCC2018/3723469

MEMBER:Penelope Hunter

DATE:6 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 06 May 2022 at 12:23pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Cafe or Restaurant Manager – applicant has ceased working for his sponsoring employer – applicant was not the subject of another nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.211, 482.224

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 on 14 November 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 June 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

3. In this case, the primary visa applicant, Mr Ajay Saini (the applicant), is seeking the visa in the Short-term stream to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.211 of Schedule 2 to the Regulations because they were not satisfied that the applicant had complied substantially with the conditions that applied to the last substantive visa he held.

5. Only the applicant appeared before the Tribunal at a hearing on 5 May 2022 via MS Team video to give evidence and present arguments. The hearing was scheduled during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue before the delegate in this case was whether the applicant satisfies cl 482.211 of Schedule 2 to the Regulations.

8. The Tribunal acknowledges the candour of the applicant in his evidence at the hearing and upon review a further issue has arisen, with the applicant advising the Tribunal that his sponsor’s business has closed down and he ceased work in the nominated occupation. This raised for the Tribunal a further issue of whether the applicant would also satisfy cl 482.224 of Schedule 2 to the Regulations and he would be employed to work in the nominated occupation.

   Substantial compliance with previous visa conditions

9. Clause 482.211 requires the applicant, if in Australia, to have complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

10. The applicant confirmed for the Tribunal that the last substantive visa that he held was a Subclass 457 visa. He applied for this visa in September 2016 on the basis of a sponsorship by Glameena Pty Ltd to work in the nominated position of Restaurant Manager. According to Departmental records this Subclass 457 visa was granted to the applicant on 12 December 2016 and ceased on 12 June 2018.

11. When questioned by the Tribunal, the applicant acknowledged that he was aware that his previous Subclass 457 visa was subject to conditions. The delegate has set out in their decision record information consistent with his Departmental movement records this visa was subject to condition 8107. In summary, because the last substantive visa held by the applicant prior to this visa was also a Subclass 457, this is a condition that the applicant not cease or change his work. Among other things it requires that the visa holder must only work in the occupation listed in his most recent approved nomination, that he must only work for his sponsor and that he not cease employment for a period of more than 60 days. In his evidence the applicant conceded to the Tribunal that he was aware that his Subclass 457 visa was linked to continuing employment with his sponsor Glameena Pty Ltd.

12. The applicant further confirmed for the Tribunal the information in the delegate’s decision record that he has ceased working for his sponsoring employer, Glameena Pty Ltd in November 2016. According to Department records Glameena Pty Ltd notified the Department on 16 November 2016, by letter dated 30 November 2016, that his employment had ceased. The applicant also acknowledged that his employment had ceased before the grant of the relevant Subclass 457 visa. He told the Tribunal that at the time he was trying to find a new employer so that he could obtain a new nomination. Then in 2017 he had some family problems and he had to return to India for a period. When he returned to Australia, he again tried very hard to find another sponsor but he had no luck until he applied for the visa under review. The Tribunal again asked the applicant whether he knew that he had to have a sponsoring employer to hold a Subclass 457 visa and he said that he did. When the Tribunal asked the applicant whether he was aware that he was breaching the conditions of his visa he responded that he did not have much information about the relevant conditions at the time, and the applicant offered that while he knew that he had to find a sponsor, he was not sure whether the time period was one month, or two or six months. It was put to the applicant by the Tribunal that the 19 months he was without a sponsor was considerably beyond any of these measures, and the applicant agreed.

13. The Tribunal finds on the information before that the last substantive visa held by the applicant was a Subclass 457 which was subject to condition 8107. It is not disputed that his employment in the nominated position ceased before the visa was granted on 12 December 2016. The applicant confirmed that he was not the subject of another nomination, and the Tribunal is satisfied that the applicant has breached condition 8107 of his previous visa. This because in that he did not he did not work for his sponsoring employer in the nominated position relevant to the visa grant and he had ceased employment for a period greater than 60 days.

14. As to whether the breach is substantial, the evidence is that it persisted for the entire period that the applicant held the relevant Subclass 457 visa. While the applicant claimed he was not aware of the specific conditions, on the evidence the applicant was aware that he was required to work for his sponsoring employer unless he obtained an alternate sponsor. Further, on the most beneficial interpretation of the applicant’s evidence, having not obtained an alternate sponsor he was aware that he was in breach of this condition for over a year. The Tribunal is satisfied that the applicant was aware that he was not complying with this condition of his visa. As to the importance of the condition, the Subclass 457 visa program was designed to enable employers to address labour shortages by bringing in genuinely skilled workers in circumstances where they cannot find appropriately skilled Australians.[1] It is tied to a sponsorship and fulfilling a need within an Australian business. In this regard the Tribunal considered that the condition 8107 was consistent with ensuring that holders of Subclass 457 visas continued to abide by the purpose for which it was granted. Overall given the length of the breach, the relevance of the condition to the particular visa and the fact that the applicant was aware of the breach, the Tribunal finds the breach by the applicant to be significant. On the evidence before it, the Tribunal finds, that the applicant has not complied substantially with the conditions that applied to the last substantive visa he held.

    [1] PAM3 Schedule 2, Subclass 457 visa, overview of the programme

15. For these reasons, cl 482.211 is not met.

    Employment in the nominated occupation and in the sponsor’s business

16. Although having found that the applicant does not meet cl 482.221 it is not strictly necessary for the Tribunal to consider any further criterion, the Tribunal has considered the criterion of employment in the sponsor’s business as it has arisen directly in relation to the review application.

17. Relevant to the current visa sought by the applicant clause 482.224 of Schedule 2 to the Regulations requires the following:

    Unless the nominated occupation is an occupation specified by the Minister in an instrument made under subregulation 2.72(13):

    (a)  the applicant is employed to work in the nominated occupation; and

    (b)  the applicant is employed to work in a position in:

    (i)  if the person who nominated the nominated occupation was an overseas business sponsor at the time the nomination was approved—the person’s business; or

    (ii)  if the person who nominated the nominated occupation was not an overseas business sponsor at the time the nomination was approved—the person’s business or a business of an associated entity of the person.

18. The relevant instrument at the time the applicant sought the visa was is Migration (LIN 19/212: Specification of Exempt Occupations) Instrument 2019. The applicant’s nominated occupation of Restaurant Manager is not an exempt occupation specified in Part 2 of the Instrument.

19. The person who nominated the applicant according to the visa application was The Trustee of the Bianchi Family Trust t/as Baldovino Italian Restaurant. It was operating its business inside Australia in the Victorian town of Thornbury at the time of the visa application.

20. In the circumstances of the applicant, for him to be granted the visa he must be employed to work in the nominated occupation in the business that was his sponsor at the time the nomination was approved or an associated entity. The applicant told the Tribunal at the hearing that he was no longer working for his nominating employer. His evidence was that the business had been affected by the COVID-19 pandemic and had closed. When asked to identify the time when he ceased work, the applicant responded that it was at the beginning of the COVID-19 pandemic. The Tribunal asked the applicant if this would be around March 2020 and he acknowledged that this was probably correct. Consistent with the evidence of the applicant that his employer ceased trading, the Tribunal notes that the relevant ABN for The Trustee for the Bianchi Family Trust, ABN 30 394 782 749, in no longer registered for Goods and Services Tax. The applicant told the Tribunal that he had been continuing to look for another business to employ him in the nominated occupation since then unsuccessfully. He did not identify for the Tribunal any associated business that would meet the requirement of cl 482.224 (b)(ii).

21. For these reasons the Tribunal finds that the applicant also does not meet cl 482.224 of Schedule 2 to the Regulations.

22. As the applicant does not satisfy the primary criteria for the visa, the second named applicant who has applied for the visa on the basis of being a member of his family unit, also does not satisfy the secondary visa criteria.

23. As essential requirements for the visa are not met, the decision under review must be affirmed in respect of all visa applicants.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Penelope Hunter
    Member