De Filippi (Migration)

[2022] AATA 1193

De Filippi (Migration) [2022] AATA 1193 (22 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marcos Agustin De Filippi

CASE NUMBER:  1901706

HOME AFFAIRS REFERENCE(S):          BCC2018/4695192

MEMBER:Stephen Witts

DATE:22 February 2022

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; and

Statement made on 22 February 2022 at 12:40pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Web Developer – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 9 January 2019 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 25 October 2018. 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 short term stream to work in the nominated position of Web Developer ANZSCO code 261212.

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 a valid nomination.

4. The applicant, Mr Marcos De Filippi, appeared before the Tribunal on 22 February 2022 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case us whether the applicant is the subject of a valid nomination.

   Requirement for an approved nomination

8. 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.

9. The Tribunal notes that the applicant has provided it with a copy of the Department’s decision dated 11 December 2018 for the nominator, Prodocom Pty Ltd, where it was asserted that the nominator had not provided sufficient financials that demonstrated that the business turnover was at that level to financially support a web developer, that is the applicant and nominee, with a remuneration package of AU$60,000 as at the time of decision. It was also noted by the Department that while there was no relationship declared by the parties that nevertheless the nomination may exist for the purpose of securing a migration outcome for the nominee.

10. The Tribunal notes financial information was also provided indicating that the nominator had a net profit of approximately $83,000 in 2020 on income of approximately $1.6 million and approximately $37,000 in 2019 on income of approximately $1.3 million; and in 2021 on an income of approximately $2.08 million the company made a profit of approximately $470,000.

11. The Tribunal further notes that also included was an organisation structure indicating that the company had six employees including the nominee and a managing director, Mr Paul Edwards, and that these employees were an IT support manager, an account manager, a Finance manager and accounts assistant, and an account manager.

12. The Tribunal notes that also included was an initial employment contract indicating that the nominee was on a salary package of $60,000 per annum upon employment which grew to $80,000 per annum plus superannuation and a submission from the nominator stating that the nominee’s duties and responsibilities matched those of a web developer in accordance with ANZSCO code 261212, and that he was currently contracting to the nominator from overseas.

13. The Tribunal notes that also provided was a copy of a consulting agreement dated 3 January 2020 (two days prior to the nominee going overseas) stating that, amongst other things, that invoices submitted by the nominee would be made every month and that the nominee would be acting as an independent contractor while overseas and not as an employee as outlined in paragraph 22 of the agreement and that he would be involved in web design and development and working with the company’s development teams full-time.

14. The Tribunal also notes that provided was a submission by the nominator dated 27 December 2018 where it was asserted that the applicant had been an employee since 12 September 2017 first as a programmer and then as a web developer. It was also stated that the nominee plans, produces and maintains websites using web programming languages, software applications, technologies, and databases together with specifications of user needs often in conjunction with other professionals such as business analysts and web designers.

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

16. The nominator provided evidence that in 2017 he advertised on three national job portals for a period of some months for a web programmer and that he received up to 6 applications for the job. He provided evidence that he interviewed these applicants and that only one was suitable, the current nominee, who was offered employment. He stated that as far as he can recall there was only one Australian citizen applicant but that he was not suitable for the job.

17. The nominator stated that the nominee does have special and unique skills that are difficult to replicate and that he also now has particular business knowledge of the nominator’s business and that therefore when he elected to return back to his home country in 2020 to see his family it was decided that he would remain in effective full-time employment as a contractor while overseas with the intention of resuming full-time employment if he was able to return back to Australia.

18. The nominator provided evidence that the nominee has been in a full-time employment role while here in Australia between 2017 and 2020 and that since that time he has also worked full-time while overseas and that evidence was presented that the nominee has earned the equivalent of $80,000 per annum +10% superannuation via invoices and other documents provided.

19. The nominator stated that although this arrangement does work with the nominee being overseas it would be far more effective and sustainable from a business perspective for the nominee to be in the office with the rest of the team here in Australia but that his importance to the business is such that the nominator is prepared to continue this arrangement for some time but that it would hope that to maximise its business and employment advantage that the nominee would be able to return to Australia and work in the business.

20. The nominee provided evidence that he has been working full-time in the business while overseas including providing invoices and payment notices that demonstrate the nature and extent of the full-time work engaged with the nominator. The nominee stated that he does not work for any other employer or provide contract services for any other business.

21. The nominee stated that he first came to Australia in early 2017 on a working holiday visa and has been on a bridging visa since his 482 visa refusal.

22. The nominator stated that although the company had initially been making modest profits since its formation in 1997 but that of recent times it has grown substantially with recent profits of AU$470,000 on a much more significant turnover of $2.08 million based significantly on the value added by the nominee and that that is why the business is prepared to continue this arrangement for an indefinite period of time should that be necessary.

23. The nominator also provided evidence that the projects undertaken by the business are reliant on the contribution made by the nominee and such projects would continue on an ongoing basis for at least a two-year period of time.

24. The Tribunal has considered the evidence carefully and finds that the position associated with the nominated occupation of web developer in accordance with ANZSCO code 261212 is genuine.

25. On that basis the Tribunal finds that the applicant is the subject of an approved nomination.

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

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

    DECISION

28. 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; and

    Stephen Witts
    Member