Sandhu (Migration)

[2018] AATA 2849

Sandhu (Migration) [2018] AATA 2849 (28 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Navjot Kaur Sandhu
Mr Jaspal Kumar
Mr Jaison Rattu

CASE NUMBER:  1713072

DIBP REFERENCE(S):  BCC2016/2793730

MEMBER:Mary Sheargold

DATE:28 June 2018

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(3) of Schedule 2 to the Regulations

Statement made on 28 June 2018 at 11:10am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position of Hotel or Motel Manager – Technical change of location and role to Café or Restaurant Manager – Position descriptions identical – Role in both locations best characterised as Café or Restaurant Manager – Tribunal approved nomination – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, rr 5.19(4), 1.13A, 1.13B, cl 187.233(3)

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 23 August 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 (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement 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 Hotel or Motel Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because there was no approved nomination.

6. The applicants appeared before the Tribunal on 22 June 2018 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent.

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 there is an approved nomination.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

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 r.1.13A and r.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 applicant’s nominating employer, S&S Hospitality Group Pty Ltd, applied to the Department for the approval of the position of Hotel or Motel Manager in respect of the applicant.  The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

12. On 14 March 2018, the nominating employer’s representative, who also represents the applicants in relation to this application, provided the Tribunal with submissions in relation to the nomination application stating, amongst other things, that the nominated occupation had a technical change from Hotel or Motel Manager to Café or Restaurant Manager.  There was also a change in location for the role, and the new location did not have accommodation services. 

13. On 19 June 2018, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant for the position of Café or Restaurant Manager under r.5.19(4). The Tribunal found that the relevant occupation for the purposes of r.5.19(4)(h)(ii)(D) in particular is not linked to any previous visa or nomination, and there is no other requirement that fixes a nomination in the RSMS Direct Entry Nomination stream to a particular identified occupation. Therefore, the Tribunal accepted the applicant’s submissions in respect of the change of position to that of Café or Restaurant Manager, and found that the nomination application satisfied all the requirements under r.5.19(4).

14. The Tribunal notes that the applicant’s visa application is made in respect of a role as Hotel or Motel Manager at the Railway Hotel Elmore.  At the hearing, the applicant gave evidence that her main duties during her work at the Railway Hotel Elmore were customer service, to manage the dining room, to organise everything for the restaurant, to organise and check security, and to check the health and safety of the customers in the dining room.  The applicant stated that during quiet times, she would assist as needed with quality control tasks in the kitchen, and manage some queries and requests in relation to accommodation.  The applicant gave evidence that the accommodation at the Railway Hotel Elmore was rarely occupied.

15. Presently, the applicant works for the nominating employer at the Five Star Café and Restaurant in Manangatang, Victoria, as the Restaurant Manager. There are no accommodation facilities at the Five Star Café and Restaurant. The Tribunal notes it was able to approve the nomination application in relation to this new role as the application met all the requirements of r.5.19(4) at the time the Tribunal made its decision. In particular, the Tribunal notes that the duties set out in the position description for the role at the Five Star Café and Restaurant are identical to those on the original application to the Department in respect of a role as Hotel or Motel Manager at the Railway Hotel Elmore.

16. At the hearing, the applicant gave evidence that she knew her role at the Railway Hotel Elmore was more closely aligned to the duties of a Restaurant Manager rather than a Hotel or Motel Manager, but that she had been advised by her previous migration agent that she must list Hotel or Motel Manager on her visa application form because she previously held a Subclass 457 visa with a different employer in the nominated occupation of Hotel or Motel Manager. 

17. Following the hearing in relation to this application, the applicant has provided the Tribunal with a signed Form 1023 Notification of Incorrect Answers, which stated that the position nominated in the visa application was incorrectly listed as Hotel or Motel Manager and should have been nominated as a Restaurant Manager.  Based on this and the evidence presented at the hearing on 22 June 2018, the Tribunal finds that the applicant’s role in both locations is best characterised as Café or Restaurant Manager.

18. As the relevant nomination in respect of the applicant has been approved, the applicant accordingly meets the requirements of cl.187.233(3).

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicants.

    DECISION

20. 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(3) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member