De Bruin (Migration)

[2023] AATA 3038

De Bruin (Migration) [2023] AATA 3038 (29 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gustav Jan De Bruin
Mrs Tessa De Bruin
Master Xander De Bruin
Master Durandt De Bruin

REPRESENTATIVE:  Mr Mark Sutherland (MARN: 9601025)

CASE NUMBER:  2001166

HOME AFFAIRS REFERENCE(S):          BCC2019/5710226

MEMBER:Stephen Witts

DATE:29 August 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 applicant and the 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.

Statement made on 29 August 2023 at 2:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – ICT Project Manager – subject of an approved nomination – skills, qualifications and expertise of the nominee – 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 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 12 November 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 ICT Project Manager ANZSCO code 135112.

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 applicants are the subject of an approved nomination.

6. The applicants appeared before the Tribunal on [insert hearing date] to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Endothelium Scanning Nanotechnologies 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 applicants are 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 notes it has been provided with a copy of the relevant delegate’s decision for the nominator dated 11 December 2019. In this decision the delegate contended that the business was registered in June 2018 and that its stated purpose was to develop swab tests for early detection of cardiovascular disease and cancer.

14. According to the delegate the nominator provided information including a business plan and financial statements, information about products that the business intends to take to market and a statement that the business was in the process of securing investors in order to fund this product development.

15. According to the delegate it considered that the nominator’s business plans, and financial forecasts, do not envisage a commencement of trade before August 2020, noting also that publicly available information indicates that the first of the applicant products will be available for sale in 2021.

16. According to the delegate based on this information and the fact that there was no evidence before it of any existing products being available for sale the delegate made a decision that the business is not trading in Australia.

17. The Tribunal has also considered the evidence provided by the nominator prior to the hearing.

18. This material included financial statements for year ending 2019, 2020, 2021 and 2022, ASIC material, BAS statements, an organisation chart, tax material, an agent’s submission, and other material.

19. The Tribunal notes that a submission was provided by the applicant’s representative dated 10 July 2023 stating that the delegate deemed that the business had not yet commenced providing a product or service to their customers as the sole reason for the refusal of nomination, and that the business is lawfully and actively operating a business in Australia, that it was registered with ASIC on 16 June 2018, that it also registered an ABN number, and is submitting BAS statements. It was also stated that has been submitting tax returns to the ATO as required, that it has employees, and that it has raised approximately $4.6 million in issued capital since it was established.

20. It was also stated that it has engaged a financial services company to act as its general financial advisor to assist in its equity capital raising offer and this organisation is a significant biotech broker. It was further asserted that the organisation is actively operating, is registered, has premises, employs staff, and conducts research and development into high-tech products after having secured investors and raising capital.

21. It was further stated that the product the organisation is developing is not yet completed because the 3 research studies required for commercialisation had to be aborted due to pandemic measures imposed on hospitals, and that the organisation has commenced development of a new supporting product with greater commercial potential but that this strategy requires more development and extended commercialisation and that therefore it is not yet available to the public.

22. It was further stated that the department’s conception of the definition of actively operating requires under its policy directions that a business must have a product for sale should not apply to a biotech company under these circumstances because it does not take into account businesses such as this that are engaged in high-tech research and development of products that may take many years to be completed. The Tribunal notes that analogies were drawn in this submission to the mining and property sectors of the economy.

23. It was further stated that when assessing business skills migration visas, it is necessary to consider the factual circumstances of the business and previous instances where this matter has been considered by the Tribunal.

24. The Tribunal notes an organisation chart headed ‘current and projected organisational structure in FY 24’ was provided indicating a chief executive officer, Leopoldt de Bruin, a chief commercial officer also involved in human resources and administration support with a communications manager and a branding and marketing and external communications manager, also a member of the de Bruin family, reporting to the position, a chief operations officer, the nominee, Gustav de Bruin, with the position designation ‘drug development regulatory’, a project manager, a biostatistician, and a molecular biologist.

25. Also included was a list of a Board of Directors including the managing director, the Chief commercial officer, and a non-executive director and a non-executive chair.

26. Also included was a presentation regarding the key partners of the business being accredited drug development partners with manufacturing capabilities, Symeres, a chemist specialist, and Syngene, a potential pharmaceutical manufacturer.

27. Also included was financial information for end of financial years 2022 and 2021 indicating revenue of approximately $370,000 and $400,000 respectively, losses after income tax and expenses of approximately $800,000 and $2.2 million respectively, employee benefits expenses of approximately $360,000 and approximately $400,000 respectively, and a balance of issued capital as at 30 June 2022 of approximately $5 million.

28. The Tribunal notes that an updated submission was provided by the applicant dated 23 August 2023 containing company information, company product descriptions and marketing presentations including the that the nominee occupied the stated positions of chief information and operating officer and research and development director responsible for solutions integration and regulatory affairs.

29. Also included in this submission was an updated business plan, financial forecasts, an updated organisation chart, project descriptions, and a chief information officer position description, as well as a witness statement.

30. The Tribunal notes that it was stated in the updated business plan that this document is for potential investors and partners due diligence processes and that it highlights the projects overall risk and benefits, its potential investor returns, and the team involved. It was stated that the product being developed by the company ESNtx004 is highly likely to be an effective antihypertensive drug for heart failure. The document also provides some information regarding the stated probability of success of this project across its various phases.

31. Also included was an accountant’s letter dated 30 June 2023 to the Department of Home Affairs stating that the business has raised approximately $4 million in issued capital since it was established in June 2018. Also included was a copy of a special-purpose agreement between the company and another entity Innocom Bio Equities dated 1 July 2022, a financial services advisor agreement with MST Financial, and a project description and record of involvement from Moore Australia dated 15 August 2023. Also included was material relating to a collaboration with Monash University signed by the nominee on 25 October 2022.

32. Also included was a submission dated 23 August 2023 purporting to explain the impact of the pandemic on the company’s original expansion plans in Geelong noting that this imposed significant delays on the company’s business plan.

33. Also included was a position description for the nominee with the position description of chief information officer indicating the role is a permanent one, starting as soon as possible and that it has a remuneration of $180,000 per annum excluding super and that is based in Geelong.

34. In this position description it was stated that the tasks included managing internal and external resources, controlling the scope of projects, managing the cost and financial forecast in the project portfolio, negotiating commercial delivery contracts with vendors and suppliers, ensuring adherence to quality and testing plans, engaging with executive stakeholders for strategic decisions, identifying risks and mitigation strategies, managing project resources, and product concept development.

35. Included also was a witness statement from Mr Coats dated 23 August 2023 stating that that individual had successfully commercialised other companies and sat on the board of biomedical companies and that he has been the chair of the company since February 2020 and it was his opinion that the company has interesting and promising prospects. It was further stated that the nominee’s role leads all research and development efforts of the company and that it is a core business activity of the organisation.

36. Also included was a genuine position letter dated 23 August 2023 on the company’s letterhead signed by the Chief Commercial Officer and Company Secretary stating that the letter seeks to explain the business needs and justification of the application in January 2019 and a subsequent process to fill the role of ICT Project manager. It stated that the company started a development project with RMIT in Melbourne in November 2018 and that there was no capable resource to manage technical projects, and that the company had no internal capability across many of the technical functions.

37. It stated that based on this and a deliberation between the founder of the business Mr Leo de Bruin and co-founder Mr Fang, Mr Gustav de Bruin, the nominee, and brother of the founder, was approached to fill the role. It was further stated that this role was advertised in the market with no appropriate candidates being presented because the role is broad and required deep technical experience and superior management. It was stated that after a probation period the nominee was confirmed in the position of ICT Project manager and that he has been performing this role since that date, and that he was promoted to chief information officer in 2021.

38. It was stated that he did not receive any preference when compared to others in the company, that he purchased his shares in the company as an employee and was not made a director and has no voting power in the company.

39. It was stated that he did not receive any preference and was in fact penalised because he was not awarded shares as other employees were because of a perceived sensitivity to his familial bond in the company.

40. At the hearing the Tribunal had a discussion with the parties about the applications.

41. In particular the Tribunal had a detailed discussion with the nominator and the nominee regarding the skills, qualifications and expertise that the nominee has in this role which he has brought to the company. The skills and background that the nominee has in three key areas of software, hardware, and diagnostic and data expertise were addressed by the parties noting the expansion of the role of recent times and the evidence provided by the nominator and by Mr Coats in regard to the difficulty of finding an ICT Project manager with those three key attributes in circumstances where Australia lacks key skills in small molecule research and development and a lack of expertise in diagnostic tool manufacture and application.

42. The Tribunal also had a detailed discussion with the nominee regarding his background noting that he first came to Australia in 2011 on a 457 visa to work with Accenture as an ICT tech consultant, that he then received another 457-visa working for ABB before working as a technical product manager with Emerson after moving to Melbourne. He stated that he then worked as a project manager with Swinburne Institute of Technology before taking up this current role. He stated that he had an electronics engineering background with project management qualifications and that he is here with his wife and two children.

43. The nominator stated that he first came to Australia in 2011 on a student visa after having achieved a bachelor and postgraduate level qualifications in business and related fields. He stated he worked as a chief financial officer in the corporate sector before starting this business with assistance from others here in Australia.

44. The Tribunal had a detailed discussion with the parties regarding the attempts made by the company to employ an individual as an ICT Project manager with the skills necessary in a new industry. The parties gave extensive evidence as to how they sought to fill this position noting that the two parties are brothers.

45. The Tribunal has considered the evidence carefully and finds that despite the familial relationship between them evidence was provided that the nominator did advertise on several job portals and did interview a number of applicants but that the nominee was a good choice for the role of ICT Project manager. The Tribunal has also considered the evidence that the applicant has now worked in the business for several years on a salary of $180,000.

46. The Tribunal has considered the above and the stated future clinical trials being developed as provided in evidence from Mr Coats, and the Tribunal finds that the nominator is lawfully and actively operating a business in Australia.

47. On that basis the Tribunal finds that the applicants are the subject of an approved nomination.

48. Therefore, cl 187.233 are met.

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

    DECISION

50. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant and the 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.