Fernando (Migration)

Fernando (Migration) [2024] AATA 134 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Thiwanka Ashane Fernando
Mrs Lasika Oshani Patikiri Arachchige
REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)
CASE NUMBER:  2101233
HOME AFFAIRS REFERENCE(S):          BCC2020/1964911
MEMBER:Warren Stooke AM
DATE:8 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl.186.233 of Schedule 2 to the Regulations; and
·cl.186.223 of Schedule 2 to the Regulations.

The Tribunal remits the application in relation to the secondary applicant for reconsideration in accordance with:
·cl.186.311 of Schedule 2 to the Regulations.

Statement made on 8 January 2024 at 5:22pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Software Engineer – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.233, 186.311

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 January 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 25 July 2020. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
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 Software Engineer – ANZSCO Code: 261313.
The delegate refused to grant the visas on the basis that the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the nominating sponsor did not stasfy the criteria for the grant of the visa.
The applicants appeared before the Tribunal on 2 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ghajan, the spouse of the owner of the business.
The applicants were represented in relation to the review.
The applicant stated that he understood the visa application was refused because the nominating employer was not able to submit financial documents and information relating to the genuineness of the position.
The applicant confirmed that a copy of the delegate’s decision was provided to the Tribunal with the application for review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant has an approved nominated position and meets the criteria pertaining to engagement in that position.
The applicant provided evidence of a Bridging Visa A that was granted on 25 July 2020 with no conditions, that became active on 16 January 2021 when the applicant Student Temporary visa ends.
The applicant provided evidence of a skills assessment with the Australian Computer Society for the nominated occupation of Software Engineer dated 24 July 2018.
The applicant provided evidence of a PTE English language test undertaken on 4 November 2019 with an overall score of 61.
The applicant provided evidence of a Computing qualification with the University of Kelaniya Sri Lanka, dated 4 June 2018, and a Bachelor of Engineering from Staffordshire University date 2016 and employment from 1 December 2014 to 5 January 2018.
The applicant provided evidence of an AFP name check dated 28 September 2020, with ‘no disclosable court outcomes’.
The applicant stated that his visa had been refused by the Department because the nominating employer was unable to submit evidence of financial documentation and a genuine need for the position.
The applicant stated that he worked part-time for 20 hours per week in 2022-23 and that he also worked for Skybus as a controller and since July 2023 he has been working full-time with ITAAG Group Pty Ltd.
The applicant stated that he had been with the company since covid and that most of the employees had their employment terminated but the business kept the applicant employed.
The applicant stated that the business is now getting busy rapidly and the management have been happy to continue his employment.
Evidence of the Nominating Sponsor (Mr Ghajan, spouse of the business owner)
The nominating sponsor provided evidence of ITAAG Group Pty Ltd registration with ASIC dated 24 March 2017 and assigned ABN 43 618 183 065, trading as ‘Puma Pinto and Signs’, that was registered on 1 October 2019.
The nominating sponsor provided evidence that Puma Pinto and Sign is a high-quality one-stop solution for printing services in Australia. With its advanced printing technology, affordable and high quality materials, complete range of design and printing services, it helps its clients make a strong brand name and image by creating the best marketing products for them. The company offers stationery, stickers and labels, photo products, gift stationery, business cards, presentation/documents, marketing products, and designing services. In conjunction the business also offer Web designing, web development and App and software development services for a wide range of industries including pharmaceutical, healthcare, manufacturing, retail, and hospitality.
The nominating sponsor provided the Department with an organisation chart that identified a CEO/MD; Sales Manager; Accountant; Software Engineer reporting, plus 2D/3D Visuals and Production.
The nominating sponsor claimed that the business had a total of 6 employees in their application that included an overseas student. The nominating sponsor stated that the business closed during covid and only the applicant and owner continued to work in the business.
The nominating sponsor provided evidence that the position was advertised with Jobs2Go that identified ITAAG Group Pty Ltd with Career One and a position of Software Engineer that was advertised from 4 June 2020 to 3 July 2020. The agent, Jobs2 Go, advised the position had 31 applications and no hires were affected from this advertisement.
The nominating sponsor provided the Department with an advertised position of Software Engineer that offered a salary of $60,000.
The nominating sponsor provided evidence that the applicant had a positive skills assessment with the Australian Computer Society dated 24 July 2018 for the nominated occupation of Software Engineer – ANZSCO Code: 261313. The assessment identified that the applicant held a degree from Staffordshire University that was completed in March 2016.
The nominating sponsor provided evidence of a contract of employment that was signed on 24 July 2020 with the applicant, that commences upon the grant of the 186 visa. The contract included a salary of $60,000 for 38 hours per week, plus 9.5 per cent superannuation. The nominating sponsor stated that the business has been paying the salary since July 2023 when sales increased (post covid).
The nominating sponsor stated that the applicant was provided with a Fair Work Information Statement, at the time of employment.
The nominating sponsor stated that the position of Software engineer will be full-time and that superannuation was now 11.0 per cent and is paid into ANZ Super.
The nominating sponsor stated that the applicant was initially engaged in printing and signage and is now engaged with internet software, where the business needed to have a person to create applications; reset printers and the queue up inventory, with some software outsources. The position is not involved in client contact but is given direction.
The nominating sponsor stated that he is the spouse of the owner and does not take a salary and the business is starting to build up clientele after covid.
The salary of $32,895 was only for the applicant during the covid period, when the applicant worked part-time.
The nominating sponsor provided evidence that the applicant will be employed for a minimum period of 2 years from the grant of the visa on a salary of $68,000.
The nominating sponsor provided the following detailed position description for the nominated position of Software Engineer:
“Evidence of Genuine Position:
Our service being centred in the printing industry; the Software Engineer position makes a vital part of the business organisation structure. It is essential for the company to employ the staff that is well qualified, experienced or have enough specialised job exposure for an important job of Software Engineer.
Furthermore, the nominated position makes an integral part of the Business operations. Operational need for the business to employ this position as a full time permanent has raised the need to nominate this employee for 186 visa.
Business Structure:
Puma Print & Sign, with its business location and growing popularity, has raised business potential to increase its financial position.
In order to facilitate its clientele growth, skilled professionals are employed on Permanent bases to enable it to continue to offer high quality service as well as continue to grow. Foremost in this is the employment of skilled and committed staff
Duties and Responsibilities include but are not limited to:
• Developing and directing software system validation and testing methods.
• Directing software programming initiatives
• Overseeing the development of documentation
• Working closely with clients and cross-functional departments to communicate project statuses and proposals.
• Analyzing data to effectively coordinate the installation of new systems or the modification of existing systems.
• Managing the software development lifecycle.
• Monitoring system performance.
• Communicating key project data to team members and building cohesion among teams.
• Developing and executing project plans.
• Applying mathematics and statistics to problem-solving initiatives.
• Applying best practices and standard operating procedures.
• Creating innovative solutions to meet Business’s technical needs.
• Testing new software and fixing bugs.
Australian Computer Society has assessed the employment as ‘equate to work at an appropriately skilled level and relevant to 261313 (Software Engineer)’.
Qualifications and work experience
• A bachelor’s degree in computer science, software engineering, or another related field.
• At least three years of software engineering or software development experience, preferably in a related field.
• Hands-on programming experience using relevant languages.
• Experience using relevant tool suites.
• Strong written and verbal communication and interpersonal skills.
• Creative problem-solving skills.
• Experience managing the software development lifecycle.
• The ability to prioritize activities and deliver projects on time and within budget.
• Experience working with clients and business partners.
• A comprehensive understanding of computer science concepts.
• Excellent coding skills.
• Extensive knowledge of agile methodologies.
• Strong team building skills.
• The ability to travel as necessary.
Nominating sponsor’s skills and qualification commensurate with the business requirements:
• Nominee meets the education requirements for this position. He holds a Bachelor of Engineering (Hons) Software Engineering and Certificate in Computer Hardware from Sri Lanka.
• Mr Thiwanka has more than 4 years’ experience as a Software Engineer.
• He is willing to work as a permanent employee.
• He is willing to undergo further training for the Software Engineer position if required by the business.
• He has been trialled and interviewed by the business at the nominated position and has already proven himself as effective in performing the required duties/ task.
• He is familiar with the day to day tasks required to fulfil the duties associated with the role.
Nomination of a position
Clause 186.233 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. 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.
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.
The Tribunal, following the hearing with ITAAG Group Pty Ltd on 2 November 2023 and the subsequent decision of the Tribunal in Case Matter 2017131 of 8 January 2024, is satisfied that the applicant has an approved nominated position.
The Tribunal is satisfied that the skills applied by the applicant with ITAAG Group Pty Ltd, demonstrate on the evidence that a genuine position exists for the nominated occupation of Software Engineer – ANZSCO Code: 261313, as supported by the evidence submitted and canvassed, at hearing.
The applicant is paid a salary that exceeds the minimum rate of pay provided under the award and a base salary of $68,000 per annum is paid to the applicant, exclusive of superannuation as per the obligation of the contract of employment. The Tribunal, following a review of the submitted material, which was provided prior to the hearing and the evidence at hearing has verified the remuneration paid to the nominee, including superannuation contributions, which are paid into ANZ Super.
The applicant provided evidence of his professional qualifications and a formal assessment of the nominated occupation by the Australian Computer Society.
On the basis of the foregoing, the Tribunal is satisfied that the applicant has the requisite skill, contract term for more than 2 years and remuneration and conditions of employment to meet the requirements of the nominated position.
Therefore, cl.186.233 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
The Tribunal is also satisfied that the secondary applicant, on the basis that the primary applicant satisfies the requirements of cl.186.233, that the criteria pertaining to cl.186.311 has been met.
DECISION
The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl.186.233 of Schedule 2 to the Regulations; and
·cl.186.223 of Schedule 2 to the Regulations.
The Tribunal remits the application in relation to the secondary applicant for reconsideration in accordance with 186.311 of Schedule 2 of the Regulations.
Warren Stooke AM
Member

ATTACHMENT A
186.233(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(10); and
(b)in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.

[2024] AATA 134

8 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies