Bodenstein (Migration)

[2023] AATA 2083

Bodenstein (Migration) [2023] AATA 2083 (7 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sophia Cornelia Bodenstein
Mr Charles Pieter Bodenstein

REPRESENTATIVE:  Mr Andrew Wun Nam Au (MARN: 1686684)

CASE NUMBER:  1933297

HOME AFFAIRS REFERENCE(S):          BCC2019/4296912

MEMBER:Stephen Witts

DATE:7 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named and second named applicant meet 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 07 July 2023 at 12:47pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Sales and Marketing Manager – active operation in Australia – nomination approved upon review – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19

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 28 August 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of sales and marketing manager ANZSCO code 131112.

5. The delegate refused to grant the visas 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 primary applicant appeared before the Tribunal on 20 June 2023 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Mr Tim Roux of Fourways Airconditioning Australia Pty Ltd.

8. The applicants were 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.

    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 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 the 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 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 relevant delegate’s decision by the nominator. In its decision the delegate contended that it considered the supporting documentation outlining the international branches of Fourways Airconditioning in South Africa and Mauritius, including business and budget information, evidence of funds associated with the international parent company, and other material.

15. According to the delegate having considered that information it was not satisfied that the nominator is actively and lawfully operating a business in Australia.

16. In particular the delegate contended that the nominator confirmed that the business was not physically operating at the time of decision particularly in regard to its business lease arrangements, and financial arrangements.

17. On that basis it made a finding that the business is one that has been in active operation for a period less than 12 months and that a business cannot be considered to have commenced active operation once the ABN and ACN registration comes into effect unless the business is physically operating noting that the business was registered on 10 July 2019, the date of decision being 19 September 2019, and that therefore the business will not be determined to have been actively operating until it has been registered appropriately in addition to it physically operating, and as such therefore the business is a physically non-operating new start-up business having no history and on that basis also made a decision in regard to the primary applicant that she was not the subject of an approved nomination.

18. The Tribunal notes that material has been provided to it by the nominator prior to the hearing. This includes details of ABN registration and an ASIC report, a job description, lease offers, a business plan, tenancy invoice, a statement and activity summaries of financial position, contract of employment, invoice evidence, customer invoices, and other material all provided in 2021.

19. The Tribunal notes that the position description includes a letter from the nominator as represented by Mr Ankur Malik dated 23 August 2019 stating that the position will be located at Gingin, Woodbridge, Gabbadah and Mandurah in Western Australia.

20. The Tribunal notes that a business plan was also provided dated August 2019 indicating that the company first began trading in 1999 selling air-conditioning systems to customers in southern Africa.

21. The Tribunal notes financial information was provided for the Australian arm of the business for the year ended 30 June 2020 indicating that sale of goods at that time was approximately $400,000 and the gross profit was approximately $40,000. Wages and salaries for this period was approximately $170,000.

22. The Tribunal notes that the company profile material provided stated that the business is a leading brand in air-conditioning and has been in business for 20 years in 17 countries and that it works in residential and commercial properties sectors in homes, offices, schools, hotels, restaurants, and banks, and other locations, and that it has offices located in Queensland, Sydney, Melbourne, and Perth. It was stated that it designs air-conditioning solutions, and provides technical and marketing assistance. It was stated that it has a business partnership with specific product suppliers including Hisense, Samsung and Haier, and that as well as air-conditioning units it also provides heat pump units and offers a maintenance service.

23. In regard to the nominee, it was stated that she is a domestic branch and sales manager for the company, that she has worked in the air-conditioning industry for 10 years, that she started as a sales representative and is now a branch manager for Western Australia since 2019.

24. Included also was some analysis material from PayScale Pty Ltd indicating that the average sales and marketing manager salary in Australia in 2019 was AU$70,663.

25. The Tribunal notes that it has been provided with a copy of a letter dated 21 April 2023 from the managing director of Fourways Air-conditioning Australia stating that the nominee has been employed by Fourways Air-conditioning Western Australia from 1 September 2019 as a sales and marketing manager and business development manager, that she is paid $90,000 per annum and a phone and vehicle account, and that her job consists of overseeing the daily operations of the business in Western Australia, contacting potential clients, planning and overseeing new market initiatives, researching organisations and individuals to find new opportunities, attending conferences, meetings and industry events, developing quotes and proposals for clients, and promoting the business.

26. The Tribunal also notes that for the period January 2023 until end March 2023 financial material was provided indicating that total sales for the business were approximately $170,000, and salaries and wages for this period of time approximately $108,000.

27. The Tribunal notes that an organisation chart dated June 2023 was provided indicating that the South African business had three directors, the Australian business had six directors which included the South African directors and three Australian citizen directors, and that the business also had three branches in Western Australia, Queensland, and Sydney and employed 11 individuals including the nominee and 6 temporary visa holders.

28. The Tribunal also notes a contract of employment between the parties dated 3 December 2019 indicating a location of employment as Malaga and Mandurah in Western Australia and included a job description for a sales and marketing manager and a salary of $90,000 per annum plus superannuation.

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

30. The Tribunal had a detailed discussion with the nominator, Mr Roux, who has been the managing director of the company for two years, and he provided evidence that the business over the last 2 to 3 years has grown from a $400,000 a year business to a $5.5 million a year business here in Australia and that it initially received very large investment from the parent company back in South Africa and that this original investment demonstrated a significant commitment to growing the company here in Australia.

31. He also stated that the nominee worked for the parent company for 10 years back in South Africa and that she was an ideal candidate when it became apparent that she wanted to move to Australia in 2019 with her husband and son and that she has been an ideal sales and marketing manager for the company and that it may not be trading today if not for that expertise.

32. The applicant’s representative on behalf of the applicants provided evidence that the business did advertise for a sales and marketing manager on 2 portals, Indeed and Career One, throughout October 2019 and provided evidence regarding the Australian citizen job applicants who were interviewed noting that it was very difficult to find suitable candidates who were situated in, or prepared to live in, either Malaga or Mandurah.

33. The Tribunal also had a detailed discussion with the applicant, Ms Bodenstein, who stated that she first came to Australia in 2015 as a visitor to visit her brother who lives here in Sydney and that she then returned in 2017 and in 2019 with her husband and son. She stated that she wanted to relocate to Australia if possible as it would provide a better future. She stated that prior to moving to Australia she worked for 10 years in Pretoria in South Africa for the parent company, for the first five years as a receptionist and office manager and for the last five years as a branch manager. She stated that her sister is a director of the company based back in South Africa.

34. The Tribunal has considered the matter carefully and finds that the nominator and the nominee have established that the business has been lawfully and actively operating here in Australia for some years and that the nominee has been working on a full-time basis with the company as a sales and marketing manager since September 2019.

35. On that basis the Tribunal finds that the nominator has met the sub regulation 5.19(9) and has been actively lawfully operating in Australia since 2019.

36. Therefore, the Tribunal finds that the applicant is the subject of an approved nomination.

37. Therefore, cl 187. 233 is met.

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

    DECISION

39. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named and second named applicants meet 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:

    (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.