Singh (Migration)

[2022] AATA 3353

Singh (Migration) [2022] AATA 3353 (23 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Janpal Singh

REPRESENTATIVE:  Mr Gaganjot Singh Bhatia (MARN: 0963188)

CASE NUMBER:  1915032

HOME AFFAIRS REFERENCE(S):          BCC2017/2656193

MEMBER:Stephen Witts

DATE:23 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233 of Schedule 2 to the Regulations; and

·cl 187.223 of Schedule 2 to the Regulations.

Statement made on 23 August 2022 at 11:06am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 July 2017. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of café or restaurant manager ANZSCO code 1421111.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

6. The applicant, Mr Janpal Singh, appeared before the Tribunal on 23 August 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Rajshahi Indian Restaurant Pty Ltd.

8. The applicant was 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.

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

12. The Tribunal notes it has been provided with a copy of the relevant delegate’s decision for the nominator by the applicant where it was contended that it was not satisfied as to the financial viability of the nominator and in particular the financial capacity to comply with the requirement to provide the applicant with at least two years of full-time employment. It was asserted by the delegate that the nominator had advised it that the applicant would be employed on a full-time basis in the position on a base salary of $55,000 per annum but the delegate was not satisfied that the business had demonstrated that it could meet that financial commitment.

13. The Tribunal notes that the nominator has provided it with material prior to the hearing, including financial and company extract material, an organisation structure chart, job descriptions, an employment contract, invoices for employee training, local job advertisements, payslips, and other material.

14. The Tribunal notes that the business is registered as an Indian restaurant and that it has an ACN number 055544388 and that it was registered in 1992 and that the current director is Ms Arti Sham. The Tribunal notes that in the financial material provided it stated that the trading income for the business in the financial year 2021 was approximately $300,000, and its net profit after tax was approximately $13,000; and that in the previous financial year it was approximately $200,000 and approximately $77,000 respectively; and that in the year before that it was approximately $200,000 and $20,000 respectively.      

15. The Tribunal notes that an organisation chart was provided indicating that there is a director in the business as noted above who is an Australian citizen, a restaurant manager who is the applicant, and 2 cooks who are Australian citizens; and 5 wait staff employed as casuals who are Australian citizens.

16. The Tribunal notes that a list of duties and responsibilities for the applicant were included, as was a letter of engagement for the nominee dated 26 June 2017 with a remuneration of $55,000 per annum, some records of advertisement material on job portals posted in 2017, material regarding the regional sponsored migration scheme advice, and a letter from the director dated 1 July 2022 stating that the nominated position of restaurant manager is important to the future success of the business, that the nominator is the director and manager of the restaurant and that her father worked in the kitchen and that her son helps in front of house work and that the applicant has been managing the restaurant since 2018.It was asserted that the family run business has worked well over the years and that she now works full-time and that she has children who have special needs and that she can no longer afford the time to manage the restaurant.

17. The Tribunal also notes that a resume was provided for the applicant stating that since June 2014 he has worked in a fast-food business prior to his current employment and that he has achieved qualifications including a diploma level qualification in business, and an advanced diploma level qualification in business and in human resources.

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

19. The nominator stated that she now owns the business and that it has been in the family for approximately 30 years and that of recent times the business has grown significantly as evidenced by the financials and that although she can appreciate that at the time of decision it may have appeared as if the business may remain financially marginal; but that over the last three financial years the business has grown significantly due to she and the nominee taking up the food and technology apps that are now available to grow the business during a pandemic.

20. She stated that the nominee has now worked for her since July 2018 and since May 2021 in a full-time capacity and that she needs him in the business as a manager for the restaurant as since 2017 she has worked full-time initially as a land tax officer for Revenue NSW until she made a change in 2019 and now works for a financial planning company that employs 10 employees and that she is also studying for a bachelor level qualification in financial planning. She stated that she does not have the time to be in the business and meets the nominee every Sunday night to discuss the activities for the upcoming week. She also stated that she has three children, a seven-year-old, a 20-year-old and a 21-year-old and that they have various mental health issues that also means that she just does not have the time to spend in the business. She stated that her father, who is illiterate, works in the business as a cook, and does not take any part in any other aspect of the business but that either she or the nominee must undertake the tasks required for the financial aspects of the business. She stated that the nominee manages the staff, manages all aspects of the restaurant and that the only interface that she now has in the business is the overall financial responsibility noting that she moved from a leased premise to purchasing the shop for the business in April 2020. She stated that she needs the nominee to manage this business and that without him she would need to close the business. She reiterated that she understood that at the time of decision it may have appeared as if the business did not have the financial capacity for the next two years but that since then circumstances have changed; the nominee not only is still employed in the business several years later but is also now employed full-time.

21. The nominator confirmed that the applicant is now being paid a salary of $60,000 per annum plus superannuation in accordance with his current contract of employment.

22. The nominee stated that he first came to Australia in 2013 and has been on 2 student visas and that he does have another application pending which he made in 2020 but that he has now worked in this business for several years and is now a full-time employee for the last 14 months and that he would intend to stay in this business.

23. The Tribunal has considered the evidence carefully and finds that based on the individual merits of this particular case that the nominator has demonstrated that the applicant will be employed on a full-time basis in the position of café or restaurant manager to work under the nominator’s direct control for at least two years.

24. Based on the above the Tribunal finds that the applicant is the subject of an approved nomination.

    Nomination of a position

25. 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.

26. 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.

27. The Tribunal finds that the applicant has met the above requirements.

28. Therefore, cl 187.233 is met.

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

    decision

30. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations; and

    ·cl 187.223 of Schedule 2 to the Regulations.

    Stephen Witts
    Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.