Sandhu (Migration)

[2021] AATA 1962

Sandhu (Migration) [2021] AATA 1962 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Malkeet Kaur Sandhu
Mr Satminder Singh Sandhu
Miss Parinaz Kaur Sandhu

CASE NUMBER:  1828403

HOME AFFAIRS REFERENCE(S):          BCC2016/38837

MEMBER:Warren Stooke AM

DATE:7 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the primary applicant and secondary applicants, respectively, meet the following criteria for a Subclass 187 visa:

·cl.187.233 of Schedule 2 to the Regulations; and

·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 07 May 2021 at 5:46pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – position of Cook – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 3 January 2016. The delegate refused to grant the visas on 11 September 2018.

2. The delegate made the decision on the basis that evidence of the nomination lodged by RAJMANDEEP PTY LTD, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Home Affairs.

3. The applicant appeared before the Tribunal on 9 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Rajmandeep Pty Ltd, the sponsor of the nominee for the position of Cook - ANZSCO Code: 351411, which was also heard by the Tribunal, as currently constituted, in Case Matter: 1818200.

4. For the following reasons, the Tribunal has decided to remit the decision under review for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant has an approved standard business sponsor by the Minister.

6. The applicant’s sponsor provided evidence from the Regional Certifying Body – Chamber of Commerce and Industry of Queensland, dated 16 January 2016, that the nominee, Malkeet Kaur Sandhu, had satisfied approval for the position of Cook – ANZSCO Code: 351411 on a salary of $54,000 per annum.

7. The applicant’s sponsor provided evidence of a contract of employment for the nominee for the position of Cook, dated 14 December 2015 and subsequently on 14 December 2020, where both contracts included a salary of $54,000 plus superannuation of 9.5 per cent and were subject to the grant of a 187 visa. This was confirmed in evidence by the applicant.

8. The applicant provided evidence that she is employed as a Cook and her duties include:

   a.Organising the kitchen;

   b.Cooking;

   c.Assigning duties to other employees;

9. The applicant gave evidence that she was originally engaged on a 457 visa that was approved by the Department in November 2016 and she commenced employment on 14 December 2016 on a formal contract of employment.

10. The applicant provided evidence that she holds a Certificate III in Commercial Cookery; Diploma of Hospitality and Diploma of Management.

11. The applicant gave evidence that she was originally engaged on a 457 visa that was approved by the Department from November 2016 and the contract of employment stated that the employment with the business was dated 14 December 2015 and a new contract from 14 December 2020. The applicant stated that she was living in Brisbane at the time the position was advertised and she commenced in 2015.

12. The Tribunal was provided with evidence that the applicant is currently on a Bridging visa A, which was issued on 3 January 2016 and permits work and study, but no travel.

13. The applicant provided evidence she completed an IELTS English language test on 7 November 2015 with an overall test score of 6.5.

14. The applicant provided evidence that she holds qualifications in Commercial Cookery; Hospitality and Management.

15. The applicant provided evidence that she is currently employed on a part-time basis (Covid 19) and is paid a wage of $940 per week net since the commencement of Covid restrictions. The applicant stated that she has a young 5 year old daughter and provides care for her daughter and works 20 hours per week.

16. The applicant stated that her only family in Australia is her husband and daughter.

17. On 6 May 2021, the Tribunal, as currently constituted, substituted a decision of the delegate to approve the nomination for the position of Cook – ANZSCO Code: 351411 in Case Matter: 1818200. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

18. On the basis that the primary applicant satisfies the requirements for the grant of a 187 visa, it follows that the secondary applicants are members of a family unit that has satisfied the requirements of cl.187.311.

    DECISION

19. The Tribunal remits the applications for reconsideration, with the direction that the primary applicant and secondary applicants, respectively, meet the following criteria for a Subclass 187 visa:

    ·cl.187.233 of Schedule 2 to the Regulations; and

    ·cl.187.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member