Bapu (Migration)

[2023] AATA 2743

Bapu (Migration) [2023] AATA 2743 (9 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shreyas Kamalesh Bapu

REPRESENTATIVE:  Mrs Alla Giller (MARN: 0210079)

CASE NUMBER:  2001001

HOME AFFAIRS REFERENCE(S):          BCC2019/4461677

MEMBER:Stephen Witts

DATE:9 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212 of Schedule 2 to the Regulations

Statement made on 09 August 2023 at 11:55am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Electronics Engineer – evidence of business progression – genuine position – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212

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 January 2020 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 September 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the medium-term stream to work in the nominated occupation of electronics engineer occupation code 23341.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

4. The applicant appeared before the Tribunal on 9 August 2023 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the nominator, Enertek Pty Ltd.

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

7. For the following reasons, the Tribunal has decided that the matter should be revisited for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant is the subject of an approved nomination.

   Requirement for an approved nomination

9. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

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

11. The Tribunal notes it has been provided with a copy of the relevant delegate’s decision for the nominator dated 16 December 2019 by the applicant. In this decision the delegate made an assessment as to whether the position associated with the nominated occupation was genuine and made a decision that it was not.

12. The delegate contended that on 6 September 2019 the applicant submitted a nomination application to nominate Mr Bapu, the nominee/applicant, in the occupation of electronics engineer 233411.

13. The delegate also asserted that it considered relevant supporting documentation and made a decision that while some of the duties to be performed appear at face value to be consistent with those of the nominated occupation, the majority of tasks of the position would not align substantially with the tasks of the nominated occupation of electronics engineer. The delegate stated that in particular is considered the claim duties of the position, the business setting, the activities of the business and the scale of those activities, and the staffing structure.

14. According to the delegate it considered that the nominator claimed that the sponsoring company is Solar SG Pty Ltd that is supplying approximately 500 systems but that insufficient information was provided regarding the volume of work that existed at that time and that therefore the delegate was not satisfied that the sponsoring company is required to develop their own proprietary IP-battery energy storage system and that therefore there is not a sufficient volume of work which requires the engagement of a full-time electronics engineer.

15. According to the delegate it considered the business progression and project status but that sufficient evidence regarding the volume of work and capacity to justify the establishment of the new business was not provided. The delegate acknowledged that the nominee had made a trip overseas regarding supply of products however it was also noted that the website of the company also provided very limited information and that therefore the delegate was not satisfied that the evidence regarding the overseas business trip demonstrated that the sponsoring company has engaged or entered into ongoing contracts that require the ongoing service of a full-time electrical engineer.

16. The Tribunal notes that the nominator has provided it with material prior to the hearing including ABN and ASIC details, BAS statements, other financial material, an organisation chart, a position description, a letter of engagement, pay slips for the nominee, some salary market survey material, and other material.

17. Included was material regarding the business’s ABN status noting it has been active from 1 January 2018 and that the director is Mr Tigran Aganesov from 26 December 2021 and the previous director was Mr Rohan Siebel.

18. The Tribunal notes that financial statements were provided for financial years ending 30 June 2022 and 30 June 2021 where it was stated that the total income for the business was approximately $200,000 and approximately $340,000 respectively, that the wages and salaries were approximately $90,000 and $70,000 respectively, and that the company lost approximately $1.3 million and approximately $1 million respectively before taxation in those years.

19. The Tribunal notes that an organisation chart was provided for the business indicating that the chief executive officer is the director as above, who is an Australian citizen, and that there are 6 positions reporting to this position including a sales, finance, design, product design, and IT position, all held by Australian citizens, and the nominee listed as an electronics engineer with 2 positions reporting to it, both engineers, 1 an Australian citizen and 1 on a 485 visa.

20. Also included was a position description for a Senior Lead Electronics Engineer stating that the role and responsibility includes the review and adopting of engineering approaches and defining the requirements of system specifications for inverters, batteries, battery management systems, solar applications, and associated control systems; deriving electronic systems and equipment requirements in system design for renewable energy systems, and reviewing electronic and electrical standards applicable to renewable energy systems. It was also stated that the role required design and development expertise, expertise in inverter technology and in cells and battery management systems, sensors and communications, system integration and testing, and the maintenance and repair of system equipment.

21. The Tribunal notes a letter of engagement for the nominee was provided dated 3 September 2019 stating that the primary purpose of the position is to design, develop, adapt, install, test and maintain electronic components, hardware and systems used for solar energy industrial applications. 

22. A review letter was provided indicating that the applicant’s salary was increased to $90,000 per annum plus superannuation on 5 April 2021. Some salary market material was provided indicating that the median salary in Australia for an electrical engineer was $95,000 per annum.

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

24. The nominator stated that the nominee was employed by the company in 2019 as full-time electronics engineer and that he is currently paid $90,000 per annum. He stated that the company became involved in the launch of new hybrid systems in their battery system and renewable energy installation business and that the nominee had specific experience in the 5 key subsystems of the design of those subsystems by virtue of his experience employed prior to this by Solar SG Pty Ltd.

25. He stated that the company did search for suitable electronics engineers with experience in those 5 key battery installation systems and that the company did receive a significant number of applications. He stated however that the experience that the nominee had already gained with his previous employment was very significant in several key areas in the renewable energy battery installation and user space and that that was a key consideration in the employment of the nominee in this role. He stated that it is difficult to find suitably qualified employees for this role as it is a highly specialised one.

26. In regards to the business itself the nominator stated that the nominee’s previous employer, Solar SG Pty Ltd, was a key investor in his company initially but that now a US based investor, Tiberis Pty Ltd initially achieved a 65% ownership of the company and now has a controlling investment in the company. Regarding the financial performance of the business the nominator stated there are 4 Australian entities of which this company is one. He stated that there is a holding company, Enertech Holdings, which owns 4 separate companies both in this area and in the manufacturing of specific items servicing the industry, and that this is the explanation for the previous financial history of this company.

27. The nominee/applicant stated that he first arrived in Australia in 2016 after having studied for and completed a Bachelor of Electronics Engineering between 2009 and 2013 in his home country and undertook a master’s level course in the same associated discipline in the United Kingdom. He stated that in October 2016 he received a 476 skilled visa and that in November 2017 he began work with Solar SG prior to moving to his current position where he has remained in full-time employment ever since.

28. He stated that he does not have any family here in Australia but that now his parents are here on visitor visas and that he has an older brother living back in his home country working in the digital banking area. He stated that his father is a retired wing commander with the Armed Forces.

29. The Tribunal had a detailed discussion with the parties regarding the application and finds that the position of electronics engineer undertaken by the nominee/applicant is a genuine one and that it is under the direct control of the nominator.

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

31. For these reasons the requirements of cl 482.212(1) are met.

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

    DECISION

33. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.212 of Schedule 2 to the Regulations

    Stephen Witts
    Member