Singh (Migration)

[2018] AATA 2171

Singh (Migration) [2018] AATA 2171 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Deshdeep Singh
Mrs Manpreet Kaur
Mr Virazveer Singh Aulakh

CASE NUMBER:  1612878

DIBP REFERENCE(S):  BCC2015/3001328

MEMBER:Warren Stooke AM

DATE:11 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

·cl.187.233 of Schedule 2 to the Regulations

Statement made on 11 May 2018 at 11:05am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Fair Work Act 2009 (Cth)
Hospitality Industry (General) Award 2010 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, 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 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 15 August 2016. The delegate refused to grant the visas on 15 August 2016.

2. The delegate made the decision on the basis that evidence of a skills assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. The applicant’s nominating sponsor appeared before the Tribunal on 21 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satnam Singh, who is a director of Life Style Grand Pty Ltd (t/a Mildura Grand).

4. On 23 March 2018, the Tribunal approved the nomination made by Life Style Grand Pty Ltd (t/a Mildura Grand) for the position of Cook for nominee Mr. Deshdeep Singh under r.5.19(4) of the Regulations. Accordingly, cl.187.233(3) of Schedule 2 of the Regulations is met.

5. On 3 April 2018 the Tribunal informed the applicant of the Notification of Decision concerning the remittal of the nominating sponsor’s application to the Department for consideration. 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.

   Background of Decision (Nominating Sponsor)

6. The nominating sponsor provided both oral and written evidence that Life Style Grand Pty Ltd (t/a Mildura Grand) operates a significant Motel/Conference Centre complex in Mildura, that services the tourist trade, local residents and business conferencing, which constitutes a significant part of the business revenue and employed labour. The nominated position of cook, works within a specific team of eight people that comprises a Head Chef; two full-time Cooks (including the nominee); a Kitchen Hand; three Waiters; and a Dishwasher. In this regard, evidence was provided that the food service part of the business is undertaken for 100 hours per week and the incumbent cooks only work 80 hours per week in total.

7. The position of Cook, works under the auspice of the Head Chef and is responsible, in conjunction with a counterpart cook, for providing meals that cover breakfasts (for guests and business conference participants); lunches and evening meals; together with the preparation of buffets for the significant business conferences that take place. An organisational chart was provided in the submission (Tribunal: 1609805 Folio 75).

8. The nominating sponsor provided evidence to the Tribunal that the nominee reports to the Head Chef, who has provided on the job training for the nominee and other staff to enhance their skills. This has included specialist food preparations to address the scope provided in the various menus and the buffet service. In addition, training is provided in hygiene, emergency evacuations, menu development, equipment maintenance, fire and safety, and guest interface and customer service.

9. The nominating sponsor provided evidence that the nominee is currently engaged on a common law contract that is underpinned by the terms of the Hospitality Industry Award 2010, which is the relevant safety net award regarding the minimum conditions of employment required under the provisions of the Fair Work Act 2009. In this regard, the nominee commenced employment with Life Style Grand Pty Ltd in June 2017 and evidence supported that the nominee lives in Mildura. Further, evidence was given that the nominee is committed to work for Life Style Grand Pty Ltd into the future and that the position will continue to be available for that purpose beyond the two years, particularly given the scarcity of labour available for engagement as cooks. The nominee has committed to work for the nominator for at least four years.

10. The nominating sponsor in the written submissions prior to the hearing provided the Tribunal with the following documents, which confirmed that award and statutory obligations under the provisions of the Fair Work Act 2009 are being complied with:

11. Further, the nominating sponsor gave evidence that superannuation payments are contributed into Host Plus for the nominee in accordance with Superannuation Guarantee Levy and this was corroborated by the nominee’s pay slip advice.

12. The Tribunal’s examination of the pay slips provided by the nominating sponsor, confirmed that the nominee is paid a gross amount of $1,038.46 per week, which resulted in a net payment of $842.46 after tax. This compares with an award rate of $742.00 gross per week for the classification. Hence, the annualised gross salary for the nominee is $55,000.00 per annum, which exceeds the minimum award rate by 40%.

13. The nominating sponsor furnished to the Tribunal a copy of the employment contract (Tribunal: 1609805 Folio 57) that demonstrates the terms and conditions of employment of the nominee comply with the National Employment Standards provided in the Fair Work Act 2009.

14. The nominating sponsor gave evidence that the underpinning award covering the nominees occupation is the Hospitality Industry Award and that at the time of engagement the nominee was provided with an employment statement as provided under the provisions of the Fair Work Act 2009.

15. The nominee is paid a wage that exceeds the minimum rate of pay provided under the award and a gross salary of $55,000 per annum is paid to the nominee, as per the obligation of the contract of employment (Tribunal:1609805 Folio 57). The Tribunal, following a review of the submitted material, which was provided prior to the hearing, including bank statements and pay slips, has verified the remuneration paid to the nominee, including superannuation contributions.

16. The position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

17. For the reasons set out earlier, the Tribunal is satisfied from the evidence before it that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. A detailed position description was provided to the Tribunal (Tribunal:1609805 Folio 72-75) prior to the hearing and confirms the genuine scope of work consistent with the position identified in IMMI 18/043 Item 330. Further, the scale of the business operation indicates that a second cook is warranted to cover the 100 hours of service performed each week.

18. The nominated position of cook (ANZSCO 351411) is designated as an ANZSCO skill level 3 in the occupations descriptor. The Tribunal confirmed at the hearing that the nominee has a Certificate IV in Cookery, with 5 years’ experience.

19. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 visa:

    ·cl.187.233 of Schedule 2 to the Regulations

    The Tribunal remits the application for reconsideration, with the direction that the second and third named applicants meet the following criteria for a Subclass 187 visa:

    ·cl.187.233 of Schedule 2 to the Regulations

    Warren Stooke AM
    Member