Sandhu (Migration)

[2022] AATA 3286

Sandhu (Migration) [2022] AATA 3286 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhraj Singh Sandhu
Ms Pavandeep Kaur Sandhu
Mr Gavin Singh Sandhu

REPRESENTATIVE:  Mr Maganty

CASE NUMBER:  1911124

HOME AFFAIRS REFERENCE(S):          BCC2018/3169618

MEMBER:Stephen Witts

DATE:4 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223 of Schedule 2 to the Regulations; and

Statement made on 04 July 2022 at 12:00pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – genuine position that is under the nominator’s direct control – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 16 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 August 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of café or restaurant manager ANZSCO code 141111.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is the subject of an approved nomination.

6. The applicant appeared before the Tribunal on 26 May 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator.

8. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the subject of an approved nomination for an employer nominated scheme subclass 186 visa.

11. The Tribunal has considered all the evidence before it including submissions provided prior to the hearing and evidence given at the hearing.

12. The Tribunal notes that it has been provided with a copy of the delegate’s decision record for the nominator dated 15 March 2019 provided by the applicant. In this decision the delegate stated that it had made an assessment of the genuine need for the nominee in the nominated occupation of café and restaurant manager including assessing the tasks of that occupation and comparing its alignment against the tasks in the nominated occupation as outlined in ANZSCO code 141111 and made an assessment that, after consideration of the nature of the role and business including its staffing structure and business hours, and made a finding that the duties of the nominated position would generally be low level tasks and that the supervisory and managerial responsibilities would only be occasional in nature and that therefore the evidence was not provided to demonstrate that there was a genuine need for the nominator to employ the nominee in this occupation. It was also specifically noted that the business employed, other than the two directors and the nominee, a marketing officer, a marketing and development officer, two part-time cooks, two full-time cooks, three part-time kitchen hands, and four part-time employees involved in customer service.

13. The Tribunal notes that material has been provided including business extract material, ASIC company extract material, financial material, a job description and ANZSCO defined duties, visa material for the nominee indicating a 457-visa grant from 2015 to 2019, employment material, employment contract material, and other material.

14. The Tribunal notes that the company material indicates the business is actively registered under an ABN number which has been active since 2006 under the trading name of Salaam Namaste.

15. The Tribunal notes an organisation chart was provided noting that the two owners of the Footscray business are Praveen Indukuri and Anil Kumar Karpurapu, both Australian citizens, that the manager is the nominee on a bridging visa, and that the business employs 2 head cooks,1 a permanent resident and 1 on a visa, 2 cooks both on visas, 2 assistant cooks both on student visas, 3 wait staff 1 on a 485 and 2 on student visas, 1 assistant manager on a student visa, and 2 dishwashers on student visas.

16. The Tribunal notes that a comparison was provided for the job description for the applicant and for that of a café and restaurant manager under ANZSCO code 141111.

17. The Tribunal notes that financial material was provided for the west Footscray business and that for the year ended 30 June 2020 that business had a total trading income of approximately $1 million and a total profit of approximately $200,000 and that for the year ended 30 June 2021 it had total trading income of approximately $800,000 and a total profit of approximately $20,000.

18. The Tribunal further notes that an employment contract for the applicant was provided dated 1 July 2020 stating the ordinary hours of work will be 50 hours per week.

19. The Tribunal also notes that a submission was provided by the applicant’s representative dated 19 May 2022 stating that the nominated candidate is required to have at least a diploma or three years of experience in handling kitchen, restaurant operations and managing a large team, and also have experience in Indian cuisine. It was further stated that the nominator has a restaurant located in West Footscray which began operations in 2007 focusing on Indian cuisine, and that it has a seating capacity of 45 patrons, and that the nominee will be working full-time. It was stated that there was no equivalent Australian citizen and that the nominee is offered $56,000 plus superannuation. It was stated that the restaurant manager will be involved in every aspect of the business including handling daily operations, developing new menus, managing staff, liaising with dealers in the purchase of raw material, and handling stock.

20. It was stated that the restaurant manager directly reports to the 2 partners that own the business, the nominator, and that the position will coordinate the cooks, chefs, and front of house staff. It was stated that the restaurant manager is the sole person overseeing all the restaurant activities and that this responsibility is not shared with colleagues.

21. It was stated that the applicant has a diploma level qualification in hospitality and experience of six years.

22. It was also stated that the business is improving in sales every year however, during the pandemic, sales were low but increased once lockdown restrictions eased. It was stated that the applicant has been working with the nominator throughout the pandemic. It was further stated that the restaurant is not a limited-service restaurant. It was also stated that the nominator searched for an Australian citizen but could not find a suitable candidate.

23. It was also stated that prior to employing the applicant the two partners who run the business were looking after all the business activities but as it started to grow and expand with other branches of the business a restaurant manager was necessary. It was stated that the position was advertised.

24. It was further stated that the business was closed for a year due to fire and that therefore it was closed from 6 June 2021 until now and that since June 2021 it was “handed over to the insurance company for renovation and maintenance”. It was stated that the applicant has “continued to be employed by the company as his salary is paid by the insurance company” and that the restaurant will be back open again from May 2022.

25. The Tribunal notes that also included was a report from Fire Rescue Victoria provided under Freedom of information legislation dated 3 February 2022 stating that a fire occurred in the kitchen of a restaurant on 7 June 2021 and that various kitchen utensils including pots and pans were damaged by heat and smoke as well as three industrial ovens and electrical light fittings. Also included was an email from the nominator to the nominee informing him of the state of kitchen renovations.

26. At the hearing the Tribunal had a discussion with the parties regarding the application.

27. The nominator provided evidence that the business consists of two restaurants preparing traditional Indian cuisine, one in Tarneit and the one in West Footscray, owned as a partnership entity by the two principal partners, and that the partners also own 23 franchise operations throughout every state in Australia except for Tasmania and Western Australia. The business as a whole turns over $40 million per annum and the franchise operations employ 400 employees under the traditional franchise code of conduct and contract arrangement. The nominator stated that he and his partner first came to Australia as students in 2002 and started their initial business in Footscray in 2006 and that due to the success of the concept of food production that they brought to Australia they were able to begin a franchise business in 2014 and now run the business as a whole as outlined above.

28. The nominator provided evidence that the nominee was first employed full-time in the business in July 2016 and that he has been paid a full-time salary as outlined working in the business full-time since that date. The nominator provided evidence that the nominee has worked as a café or restaurant manager reporting to the nominator in the Tarneit store and that the Footscray business will be re-opening in June 2022 and that the nominee will transfer back across to the original business and act as a manager in that business henceforth. The nominator also provided evidence that the nominee also undertakes duties and responsibilities associated with training franchisee staff and some involvement in the franchise business as well as acting as manager of the Tarneit business since June 2021. The Tribunal notes that evidence was provided that this business is approximately twice the size of the Footscray business, that it turns over $3.5 million per year and that it includes 90+ seating.

29. The applicant stated that he first came to Australia in 2008 on student visas and that he studied cookery for some time prior to achieving qualifications in business and higher education at diploma level. He stated that since 2016 he has worked for the partners in this business and that he is responsible for running the kitchen, inventory control, marketing and promotions both within the partner entity but also in the franchise operation and that he also hires staff and trains them as well as engaging in marketing and working with new suppliers.

30. The Tribunal has considered the evidence and finds that the position of the nominated occupation of café and restaurant manager is a genuine position and that it is also under the nominator’s direct control.

31. The Tribunal therefore finds that the applicant is the subject of an approved nomination.

    Nomination of a position

32. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

33. In addition, this criterion also requires that:

    ·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 reg 1.13A and reg 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.

34. The Tribunal finds that the applicant meets all the above requirements.

35. Therefore, cl 186.223 is met.

36. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

37. The Tribunal finds that as the primary applicant meets the requirements for the grant of the visa that the secondary applicants also meet the requirements for the grant of the visa.

    DECISION

38. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223 of Schedule 2 to the Regulations; and

    Stephen Witts
    Member

    
    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.