ABUL CASSIM (Migration)

[2023] AATA 3031

ABUL CASSIM (Migration) [2023] AATA 3031 (1 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MOHAMED FAZIL ABUL CASSIM

REPRESENTATIVE:  Ms Eidy Melanie Douglas (MARN: 1573017)

CASE NUMBER:  1931591

HOME AFFAIRS REFERENCE(S):          BCC2019/4715059

MEMBER:Stephen Witts

DATE:1 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 01 September 2023 at 9:26am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Facilities Manager – English language proficiency – ‘Competent English’ – Pearson PTE test – subject of an approved nomination – genuine position – low level tasks – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15C, 5.19; Schedule 2, cls 187.232, 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 20 September 2019. 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 Facilities Manager ANZSCO code 149913.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.232 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had achieved appropriate English proficiency.

6. The applicant, Mr Cassim, appeared before the Tribunal on 1 August 2023 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Mr Haniffa, from Starlight Services Australia NT Pty Ltd.

8. The applicant was represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has achieved competent English proficiency and also, if so, is the applicant the subject of an approved nomination?

    English language proficiency

11. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in the appropriate legislative instrument: cl 187.232.

12. ‘Competent English’ is defined in reg 1.15C of the Regulations. A person will have competent English if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score, or

    ·holds a specified passport.

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

14. The Tribunal notes that it has been provided with a copy of the delegate’s decision record by the applicant. According to the delegate on 20 September 2019 the applicant lodged an application for a 187 visa, and that the applicant has not provided an IELTS test result which was less than three years old and therefore could not be used to satisfy the competent English requirement as outlined in subclause 187.232(a). It was also contended that the scores achieved on the supplied test did not meet the minimum required scores to demonstrate competent English and as the applicant is the holder of a Sri Lankan passport, he is not considered to be a person in a class of persons specified by the Minister.

15. It was also asserted by the Department that a response was received stating that the applicant’s qualifications will be used to meet the English requirement criteria and that he has completed at least five years of study where the language used to deliver the course is English. According to the delegate applications lodged on or after 18 March 2018 are not exempt from demonstrating competent English including the five years of study in English and based on this it was contended that the applicant did not satisfy subclause 187.232.

16. The Tribunal notes the evidence provided prior to the hearing that the applicant has successfully completed a Pearson PTE test on 13 January 2023 with an overall test result of 69.

17. On that basis the applicant met that particular requirement and so meets cl. 187.232.

    Is the applicant the subject of an approved nomination?

18. The Tribunal notes that this matter was heard concurrently with case number 1931590 being a nomination made by Starlight Services Australia NT Pty Ltd on behalf of the nominee to work in the nominated occupation of facilities manager in accordance with ANZSCO code 149913, being an application refused by the delegate.

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

20. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision for the applicant’s nominator, Starlight Services Australia NT Pty Ltd, by the applicant. In this decision it was stated that the nominator lodged a nomination on 4 September 2019 on behalf of Mr Mohamed Cassim as a nominee to work in the nominated occupation of facilities manager on a base salary of $64,480. According to the delegate as the application was not full and complete a request for further information was sent on 24 September 2019 noting that one of the requested items was an employment contract for the nominee to show that he would be working in the position for at least two years full-time. According to the delegate no evidence was supplied in regard to requests for information and based on that and a consideration of regulation 5.19(4) it refused to approve the nomination.

21. The Tribunal notes that information was provided prior to the hearing by the nominator.

22. In particular the Tribunal notes that on 24 May 2023 the nominator provided a letter of response, some financial information including BAS statements, an organisational chart, an employment contract, copies of advertisements, a statutory declaration from Mr Haniffa, and other information.

23. The Tribunal notes that information was provided indicating that the director of the business is Mr Mohamed Haniffa, and that the company was registered in 2015.

24. Also included was a submission by the applicant’s representative dated 24 May 2023 stating that due to various circumstances including the pandemic and border closures that the business has suffered “massive reduction in revenues and was not able to continue the company’s operational since 2022.”

25. Also included was information comparing the duties and responsibilities of the nominated position and how they correspond to the appropriate occupational code.

26. Also included was a letter dated 6 August 2019 from a regional manager with Hertz stating that the nominee had an association with the company in that the nominator Starlight Services contracted to it for the purpose of providing vehicle cleaning in regional locations, it was stated, “across Perth and Darwin.” It was further stated that he worked with the nominee/applicant for 3 years while the nominee was performing work for Starlight Services.

27. Also included was an organisation chart indicating that the managing director of the business is Mr Haniffa, and that there is a human resource manager, administrator, an accountant, and 2 shift supervisors as well as a position of facilities manager attributed to the nominee/applicant.

28. Also included was a statutory declaration by the owner and director of the business, Mr Haniffa, dated 9 August 2019, stating that he has a genuine need to employ a full-time employee as a facilities manager, and that he has determined that the nominee has the appropriate experience and qualifications.

29. The Tribunal notes that a salary survey comparison was also provided undated referring to other positions which it was stated was similar to the nominated occupation and provided salaries of $50,000-$60,000 per annum. Copies of generic advertisements with advertising specialists were also provided dated from June 2019.

30. Also included was a advertisement from Job Search dated 7 August 2019 stating that “regional facility manager position car wash Starlight services Australia” provides quality automotive cleaning services to customers and includes performing detailed inspections, washing, buffing, and waxing exteriors, and vacuuming, steaming and deodorising the interior of vehicles, and that the position requires managing the day-to-day operations of the business.

31. The Tribunal also notes that a submission by the nominator dated 27 July 2023 was provided stating that the nominator operates as a specialised hand car wash service for rental car companies offering services of car washing, cleaning, and detailing, and that the applicant provides these services at the client’s location. It was further stated that the applicant has received more work and that it needs a facilities manager to be employed to manage the service and that it advertised the position on two job portals for the period 27 June 2019 to 13 July 2019 and that 34 applications were received, resulting in the applicant identifying the nominee/applicant to be the most suitable person for the position.

32. It was further stated that the nominator lodged a nomination application on 4 September 2019 for the nominee Mr Cassim, and that this application was refused on 26 October 2019.

33. It was also asserted that prior to this the nominator requested an extension of time on 15 October 2019 and no response was received from the Department leading to the applicant not being aware that the time extension request was not granted at the time of the refusal decision.

34. It was also stated that the nominator submits that the business was temporarily closed during the pandemic and that the nominee’s contract was suspended and that with the pending outcome of the nomination application the nominator was forced to discontinue the contract and discontinue their service to the client.

35. It was further stated that at the time of the application the nominator was actively and lawfully operating in the Northern Territory and that the nominator has provided financial reports for year ending 2019, 2020, and 2021, and also provided were BAS statements and an historical company extract. It was stated that the nominee was hired as an employee and that the identified person will be employed on a full-time basis in the position for at least two years, and that a copy of an employment agreement between the parties is provided dated 1 January 2018.

36. It was also contended that the delegate’s decision was unfair and that a refusal to grant the nominator an extension of time to provide additional information made it more difficult for the applicant to obtain a favourable outcome, and on that basis the delegate’s decision to exercise his power to refuse the nomination application was incorrect.

37. The Tribunal also notes that provided was the nominee’s PTE English language test result dated 13 January 2023 with an overall result of 69, a revised employment contract dated 1 January 2018, and other material.

38. The Tribunal notes that the definition of a Facilities Manager in accordance with ANZSCO code 149913 is described as a nominee who organises, controls and coordinates the strategic and operational management of buildings and facilities in public and private organisations to ensure the proper and efficient operation of all physical aspects of the facility, to create and sustain safe and productive environments for occupants. It is noted that alternative titles for this occupation and skill level include Building Manager and specialisations can include such occupations as Shopping Centre Manager.

39. At the hearing the Tribunal had a detailed discussion with the nominator, Mr Haniffa, and the nominee, Mr Cassim, regarding the application.

40. The nominator stated that his business has been trading since 2015 under 2 names, that is, Starlight Services Australia NT Pty Ltd and Starlight Services Pty Ltd, due mainly, it was stated, because of the various lockdowns during the pandemic in particular in Western Australia and the Northern Territory, which meant that for some months during this time the nominee, although still employed full-time, had to relocate to one state to continue working in the business and that the business itself had trouble trading across state boundaries during this time.

41. It was stated that the nominee first started work for the company on a part-time basis while a student in mid-2014 and that in late 2016 he became a full-time employee of the company and has been working for the company ever since servicing such clients as Hertz, Europe Car, and Thrifty. It was stated that currently he is based in Perth and other locations in Western Australia, including Karratha, but on occasions over the last few years has also worked in Darwin. The nominator provided evidence that the business is currently operating, and that the nominee has worked in the business on a salary of $54,000 per annum on a full-time basis for up to 7 years and before that on a part-time basis.

42. The Tribunal has considered the evidence carefully and had a detailed discussion with the parties regarding the actual duties and responsibilities of the nominee working with the nominator over the last few years. The Tribunal has considered the evidence provided carefully noting that the nominee does engage in some more skilled activities associated with liaising with clients and customers and working on such activities as rostering of subcontract staff but is nevertheless concerned that the nominee is also engaged in car washing, car detailing, and other general physical tasks associated with washing and maintaining hired motor vehicles.

43. On that basis the Tribunal has considered the evidence provided, in particular the evidence regarding the more high-level activities defined as being the role of facilities manager and does not find the evidence provided in regard to those high-level duties credible. The Tribunal has considered that the owner of the business works in the business most if not all the time based in the company’s office near Perth airport and the Tribunal finds that it is most likely that the nominator is carrying out the more high-level or skilled duties including controlling and coordinating the strategic and operational management of the business, and ensuring its proper and efficient operation, and that the nominee is more likely carrying out the more low level duties associated with managing a fast turnaround car hire business and would spend most of his time washing and cleaning cars and assisting with those more low level tasks.

44. The Tribunal has also considered the submission of the nominator regarding the circumstances of the refusal of the initial nomination in circumstances where it was stated that the department did not give adequate opportunity because it did not respond to a time extension request in time and finds that this particular issue is not relevant to the key issue as to whether the nominee was carrying out the function of a facilities manager for the time required.

45. The Tribunal has also considered the evidence provided regarding the applicant’s salary noting that he is currently being paid $54,000 per annum and that he is not formally paid any overtime although he is working it, but that he may be given time off in lieu for the time worked. The Tribunal also received evidence in regard to the means by which the nominator calculated the annual market salary rate for the role of a facilities manager and does not find it credible that the company genuinely sought to employ a high-level facilities manager on that salary by genuinely going to the market to ascertain whether any such skilled employees were available and how the salary that they should be paid should meet that market expectation. The Tribunal notes that evidence was provided regarding an interview process and that potential applicants were listed as being not suitable and having no appropriate experience in the relevant role and industry but that the Tribunal was concerned that the references to a candidate being unacceptable because of no car wash experience or having no experience in the relevant role or industry was not necessarily a robust analysis of the applicants’ presenting for the role of a genuine facilities manager at that time.

46. The Tribunal therefore made a finding that the nominee/applicant is not genuinely engaged in the tasks of a facilities manager as defined under the above occupation code and specifically that the nominator has not been employing the nominee in the role of a facilities manager for two years and would not be employing the nominee in the role of facilities manager for the next two years or into the future.

47. On that basis the Tribunal made a finding that the applicant is not the subject of an approved nomination and therefore did not meet the requirements of cl 187.233.

48. The Tribunal notes that it made a finding in case number 1931590 subsequent to the hearing 0n 1 August 2023 as detailed above that the nominator did not meet the requirements as outlined by the regulations. On that basis the Tribunal contacted the applicant in accordance with the obligations outlined in s.359A of the Act on 3 August 2023 noting that the application made by the nominator was refused by a delegate of the Minister and that the nominator sought a review of that decision but that it had been recently affirmed by the Tribunal.

49. On that basis, the applicant was informed that the application for the nominated position has not been approved. It was also stated that this information is relevant to the review because it is a requirement for the grant of the visa that that position specified in the visa application is the subject of an approved nomination. It was also stated that this means that the applicant did not satisfy the requirement for the grant of the visa and that therefore the Tribunal must affirm the decision that is under review. The applicant was invited to give comments or respond to the above information in writing and that this should be received by 17 August 2023.

50. The Tribunal notes that a response was received by the Tribunal on 16 August 2023 from the applicant’s representative requesting that the Tribunal delay making a decision on this matter to allow the applicant to consider further options. The Tribunal considered this matter and made a decision that the decision will be delayed until 1 September 2023.

51. The Tribunal notes that on 31 August 2023 the applicant’s representative contacted the Tribunal via email stating that the applicant had no further information or documents to provide in this matter.

52. The Tribunal therefore finds that the applicant is not the subject of an approved nomination.

53. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

1. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

   Stephen Witts
   Member