Singh (Migration)

[2022] AATA 1627

Singh (Migration) [2022] AATA 1627 (25 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ravinder Singh
Mrs Harjit Kaur

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  1909285

HOME AFFAIRS REFERENCE(S):          BCC2016/492908

MEMBER:Nicola Findson

DATE:25 February 2022

PLACE OF DECISION:  Perth

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(5) of Schedule 2 to the Regulations.

Statement made on 25 February 2022 at 2:33pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Graphic Pre-press Trades Worker – verifiable evidence relating to the applicant’s employment in the nominated position – tasks expected to be performed by the applicant in the business correspond to the tasks of a Graphic Pre-press Trades Worker at ANZSCO Skill Level 3 – position is still available to the applicant –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 375A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

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) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 February 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 (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry 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 Graphic Pre-press Trades Worker (ANZSCO 392211).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(5) of Schedule 2 to the Regulations because the delegate was not satisfied that the position the applicant was nominated to undertake is still available.

6. The applicants appeared before the Tribunal on 19 November 2021, to give evidence and present arguments.

7. The applicants were represented in relation to the review, and their registered migration agent also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position is still available to the applicant.

10. The Tribunal notes that on 14 May 2019, the Department issued a certificate pursuant to s.375A of the Act, purporting to cover internal process information contained in the Departmental file.  At the hearing the Tribunal informed the applicants of the existence of the certificate and indicated that its preliminary view was that the certificate was valid for the reason of its disclosure being contrary to the public interest, as outlined by the delegate on the certificate. The Tribunal also informed the applicants that it considered the information covered by the certificate not to be relevant to the decision under review in any event. When invited to do so, the applicants did not make any submission as to the validity of the certificate.

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. 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 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.

13. The nomination lodged in connection with the applicant is for the position of Graphic Pre press Trades Worker with Swan Prints Pty Ltd, which trades as Elite Printing Services.  The nomination was approved on 13 October 2016.  It is noted that the applicant is the sole Director and shareholder of Swan Prints Pty Ltd.  The nomination is a self-sponsored situation, allowed by the regulations at the time the nomination was approved.

14. The applicants provided the Tribunal with a copy of the delegate’s decision at the time they applied for review.  The decision records that on 27 July 2018, Departmental officers visited the nominator’s business premises, however, the office was closed and the applicant was not there.  On 1 August 2018, Departmental officers again visited the nominator’s business premises and conducted an interview with the applicant.  The findings of the officers’ interview were that the applicant did not appear to be undertaking the tasks of the nominated position as described by the ANZSCO and, therefore, that the position the applicant was nominated to undertake is no longer available.  On 6 August 2018, the Department wrote to the applicant and invited him to comment on the information that may be the reason or part of the reason for refusing the visa. 

15. The decision records that on 6 August 2018, the applicant provided a response to the adverse information, as well as supporting documents, including: a submission explaining that he was ‘shaken up’ by the site visit and concerned that he may be detained and/or deported which may have resulted in him not being able to clearly respond to the questions posed by the officers; as well as a letter dated 29 August 2018 from Mr Arvinder Singh, Director of ‘Sign Square’ confirming that there is an arrangement in place whereby the applicant is able to use its equipment, for a fee, to meet the orders of his clients.  The decision records that the delegate was concerned that there were inconsistencies between the information the applicant provided to Departmental officers and the information in response to the invitation to comment.  In particular, the Delegate was concerned that the applicant, in his response, claimed to have an agreement with the company, ‘Sign Square’, for the use of their equipment, but had not made any mention of this during his interview with the officers.  Also, the delegate was of the view that it did not seem credible that the applicant would not raise with the officers at the time of their visit that he may not be answering questions clearly because he was ‘shaken’ and concerned about being detained and/or deported. The delegate placed more weight on the findings of the Departmental officers and ultimately concluded that the information before him did not demonstrate that the position of Graphic Pre-press Trades Worker is still available to the applicant.

16. During the review process and prior to the hearing, the applicant’s representative provided to the Tribunal a written submission which provides detailed information about the nominator’s operations as well as a focussed response to the concerns set out by the delegate in the decision record.  It is submitted that the delegate’s refusal turns upon erroneous conclusions.  It is claimed that the applicant has worked as a Graphic Pre-press Trades Worker on a full-time basis with Swan Prints Pty Ltd since 2015.  The submission clarifies the duties and tasks performed by the applicant in the nominated position, which duties and tasks it is submitted align with the description outlined in the ANZSCO.  It also confirms that the nominated position is still available and essential to the operations of the nominating company.  Material accompanying the applicant’s submission includes (but is not limited to) ASIC records, Company Tax Returns, Business Activity Statements (BAS) from July 2016 to June 2020, business bank statements, PAYG Summary Statements in respect of the applicant for the years ended 30 June 2016 to 2020, bank statements of the applicant showing regular salary deposits, an agreement for use of equipment between the nominator and ‘Sign Square’, payroll information in respect of other staff members, and photographs. 

17. At the hearing the applicant outlined his educational and professional background.  He told the Tribunal that when he first arrived in Australia in 2009, as the holder of a student visa, he undertook and completed studies in Graphic Design and Multi-Media.   He indicated to the Tribunal that his interests, skills and experience are conducive to working in a creative industry, and he enjoys his craft. He told the Tribunal that in about 2012, he was nominated by another company to work as a Graphic Pre-press Trades Worker.  However, the nomination approval did not eventuate and, as a consequence, he had no option but to withdraw his related visa application.  He indicated he was very disappointed about this outcome.  The applicant told the Tribunal that he enrolled in further study and then, on the advice from a migration agent, set up a business to support a self-sponsorship situation at a time when the Department was allowing this.  He confirmed to the Tribunal that in 2015, he was granted a Subclass 457 visa to work in the position of Graphic Pre-press Trades Worker nominated by Swan Prints Pty Ltd.

18. The applicant described to the Tribunal the operation of his business, including customer mix, the types of work he undertakes and the overheads.  He also described, in detail, the duties and tasks he carries out on a daily basis.  He explained that he is responsible for consulting with clients, designing layouts, assembling and formatting text and graphic elements for print, proofing work, and arranging printing as well as the installation of some projects.  He indicated that while he always takes responsibility for the printing and install process, he does hire equipment owned by ‘Sign Square’ to print work which cannot be printed on the machinery of his business, and he does outsource the installation of projects.  He indicated that the machines he has an arrangement to use are very expensive and would require additional staff to look after them, so it is more cost effective for him to use the equipment of another business from time to time.  He also told the Tribunal that as his business had developed, it had invested in additional equipment to assist with operations, which meant that utilising the equipment of ‘Sign Square’ did not happen as frequently.  The applicant told the Tribunal that he has worked in the industry, at the same address, for over 6 years and that while Covid-19 pandemic and his visa process has impacted upon operations, including growing the business as he would have liked to, the business remains profitable.  He told the Tribunal, and the written evidence reflects (Payroll Reports and PAYG Summaries), that the business structure of Swan Prints Pty Ltd has always included other employees, including an Office Manager (which position, despite the nominator’s best attempts, has unfortunately had a high turnover and been difficult to fill with a suitable person over the years), an Office Co-ordinator, and since January 2021, a Signwriter.

19. The applicant indicated that he was shocked and “very, very stressed” when Departmental officers arrived at the business premises on 1 August 2018, out of the blue, to question him.  He indicated that he held the expectation that his visa would be approved, given that the nomination had been approved in 2016.  He told the Tribunal he was extremely nervous about the visit, but nonetheless explained to the officers how the business operated; showed them around the premises; and answered the questions asked of him.  He said that at the time of the officers’ visit, the business was temporarily operating without any staff, in particular an Office Manager, which position the business had advertised in the newspaper and online, and was actively looking to fill.  He also said it was his recollection that, while he did not mention ‘Sign Square’ specifically, he did indicate to the officers that he ‘outsourced’ the printing that he was unable to do on his own machinery, as well as the installation of work.

20. The Tribunal also notes the applicant’s evidence that when Departmental officers visited the busines premises the first time, on 27 July 2018, he was not there because he was donating plasma at the Australian Red Cross in Edgewater.  A document entitled ‘Donation History’ issued by the Red Cross supports this claim.

21. The financial information provided to the Tribunal, including recent Company Tax Returns and BAS, indicates that Swan Prints Pty Ltd has since 2015 actively operated and generated an income. 

22. The Tribunal has had regard to the tasks of a Graphic Pre-press Trades Worker as described by the ANZSCO, which include:

    ·operating graphic cameras and other photographic equipment to reproduce camera-ready copy onto films, plates and digital output devices;

    ·using computer applications to generate images, text, layouts and impositions for print and other visual media displays;

    ·operating plate making equipment to reproduce images from film to printing plates, digital output devices and presses;

    ·operating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and produce film for plate, digital output and cylinder productions;

    ·carrying out digital and chemical proofing from digital systems, and negative and positive films;

    ·evaluating printed proofs, checking and correcting them for quality;

    ·preparing and exposing carbon tissue for laying on cylinders by transfer method, and developing images.

23. The Tribunal places weight on the applicant’s oral evidence given at hearing, which it found to be reliable and persuasive, as well as the written documentation provided at review. 

24. On the basis of the evidence before it, the Tribunal has formed the view that there is verifiable evidence relating to the applicant’s employment in the nominated position that the Tribunal considers probative and persuasive.  The applicant gave detailed and convincing evidence about his employment at Swan Prints Pty Ltd since 2015 (including as a Subclass 457 visa holder), the nature of the work he undertakes, and his daily duties and responsibilities.  Having regard to the totality of the presented evidence, the Tribunal is satisfied that the nominator relies on the full-time employment of the applicant as a Graphic Pre-press Trades Worker; that the tasks associated with the position correspond sufficiently to those of the occupation of Graphic Pre-press Trades Worker, such that it is satisfied that the tasks expected to be performed by the applicant in the business correspond to the tasks of a Graphic Pre-press Trades Worker at ANZSCO Skill Level 3; and that the applicant performs the duties of the position as claimed. 

25. In the circumstances of this case, in the Tribunal’s view and on a plain reading of cl.187.233(5), the Tribunal is satisfied that the position is still available to the applicant.

26. Therefore, cl 187.233 is met.

27. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

28. 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(5) of Schedule 2 to the Regulations.

    Nicola Findson
    Member

    
    

    ATTACHMENT A

    187.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); and

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

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

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

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