Gunawan (Migration)

[2021] AATA 143

Gunawan (Migration) [2021] AATA 143 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yosia Susanto Gunawan
Ms Fanny Devy Pramono Hoo

CASE NUMBER:  1808245

HOME AFFAIRS REFERENCE(S):          BCC2017/935157

MEMBER:Warren Stooke AM

DATE:15 January 2021

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 meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.223 of Schedule 2 to the Regulations;

·cl.187.233 of Schedule 2 to the Regulations; and

Statement made on 15 January 2021 at 11.45am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 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 9 March 2017. 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 Direct Entry stream, to work in the nominated position of Retail Manager – ANZSCO Code: 142111.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa are not satisfied.

6. The applicants appeared before the Tribunal on 2 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Albert Chandra, the nominating sponsor.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved standard business sponsor, as required in the regulations.

10. The applicant provided evidence that he applied for a 187 visa on 9 March 2017 and that a decision of the Department was advised on 13 March 2018.

11. The applicant provided evidence that he undertook an IELTS English language test on 5 December 2015 and achieved an overall score of 6.0.

12. The applicant confirmed to the Tribunal that his resume included the following academic qualifications:

    a.Bachelor of Commerce in Accounting 2015 that was conferred on 27 Jan 2016 at Murdoch University, Western Australia;

    b.Associate Degree of Business that was conferred on 26 August 2014;

    c.Diploma of Accounting that was conferred on 19 December 2012;

    d.Certificate IV in Financial Services that was conferred on 17 February 2012;

    e.Certificate III in Financial Services that was conferred on 6 February 2012, with the Polytechnic West TAFE) Western Australia.

13. The applicant provided evidence that he is engaged in employment as a Retail Manager, with Mobile Express Repairs and Accessories, Rockingham, Western Australia and that he is paid a salary of $58,000, plus superannuation, which is paid into Australian Super.

14. The applicant provided evidence that he undertakes the following duties in relation to a rotation across the three stores operated by the owner:

    a.Do opening job by maintaining cleanliness and tidiness of the shop, authorizing the till machine and EFTPOS machine to start the sales as well as put the float money to the machine.

    b.Make a weekly roster that suit the availability of staffs.

    c.Maintain customer satisfaction and the standard of the service by looking the number of critics and complains coming.

    d.Update the price of the service by matching the increase or decrease the cost of sales and service.

    e.Answer customers question and inquiry coming from email, Facebook and Gumtree.

    f.Training new or current staff.

    g.Do closing job by counting daily sales (make sure its match between cash and EFTPOS receipts to the till machine) and preparing next day float.

    h.Prepare a simply daily report of sales in Ms. Excel for each store and keep the file in the company's computer system.

15. The applicant stated that he is involved in a business rotation once per week and will monitor the performance of the staff.

    Evidence of Witness – Mr Albert Chandra

16. The nominating sponsor provided evidence that the business was registered with ASIC on 30 March 2016, as Mobile Express Repairs and Accessories, Rockingham, with an ABN 33 122 026 322 (ATF Amazing Grace Family Trust - ABN 89 712 518 474).

17. The nominating sponsor provided evidence that an RSMS was approved on 10 February 2017 for the position of Retail Manager – ANZSCO 142111 on a salary of $52,000 for the applicant Yosia Sucanto Gunawan.

18. The nominating sponsor described the business as providing retail and servicing for mobile phone repairs and the sale of accessories and that the business was started in 2015 following a prior career by the nominating sponsor in technology and information technology since 2006.

19. The nominating sponsor stated that the business engaging the applicant is located in the Rockingham shopping centre, as a kiosk comprising 20 square metres, where the business is subject to a lease agreement.

20. The nominating sponsor provided evidence that he has three stores and that the applicant was engaged to provide support to the owner with his expanded business.

21. The nominating sponsor gave evidence that he employs the applicant, plus 4 other employees who work as casuals and part-time.

22. The nominating sponsor stated that he is responsible for the business’s development, including looking for new business sites, shopping sites and start-up of a market place. He stated that he is not involved in the day to day business.

23. The nominating sponsor provided evidence that he has three retail outlets.

24. The nominating sponsor provided evidence that the relevant award applying to the business is the Retail Industry Award and that a Fair Work Information Statement was provided to the employees by the applicant.

25. The nominating sponsor provided evidence that the applicant undertakes the following duties as a Retail Manager:

    a.Determining product mix, stock levels and service standards, that included assessing the value of products regarding cost and quality;

    b.Formulating and implementing purchasing and marketing policies, and setting prices, through the analysis of trends of what customers buy, where sometime the product information is not accurate and the nominee talks to staff as to what to buy from the suppliers;

    c.Promoting and advertising the establishment's goods and services and setting prices based on the quality of different brands;

    d.Selling goods and services to customers and advising them on product use, which is performed both by the staff and the nominee;

    e.Maintaining records of stock levels and financial transactions, which is based on a manual system of cash handling;

    f.Undertaking budgeting for the establishment;

    g.Controlling selection, training and supervision of staff, which is undertaken by the nominee, including gathering of CVs and choosing the best nominating sponsor for the position;

    h.Ensuring compliance with occupational health and safety regulations, which is undertaken by the nominee.

26. The nominating sponsor stated that the applicant uses Google data to record daily sales and reviews this material before advice to the Director.

27. The nominee meets with suppliers and contacts the nominating sponsor on Whatsapp where there is a need to discuss matters and to report on the stores performance.

28. In addition, the nominating sponsor provided evidence that the applicant undertakes the following duties:

    a.Maintaining records of inventories;

    b.Responsible for ordering goods and parts required;

    c.Maintaining presentation of store and advertising displays;

    d.Advising products suitable to customer needs;

    e.Maintaining security and privacy of each customer through the repair agreement;

    f.Answering customer queries from store’s Facebook, Gumtree and e-mail;

    g.Responsible in product management, including setting prices and handling damaged products as well as returns;

    h.Handling complaints and difficult customers by giving appropriate solution, where there is no contact with the owner, other than a report;

    i.Collecting daily transaction, filed and collated by the nominee and reported to the higher management;

    j.Training new staffs and monitoring their performance.

29. On 18 January 2017, the nominating sponsor identified the need for a Retail Manager to manage the daily operation of the business, which was produced in evidence.

30. The nominating sponsor provided evidence that the applicant’s tasks include the following, which are contained in the descriptor for a Retail Supervisor – ANZSCO Code: 6215:

    a.ensuring that customers receive prompt service and quality goods and services;

    b.responding to customers' inquiries and complaints about goods and services;

    c.planning and preparing work schedules and assigning staff to specific duties, including rosters;

    d.interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances;

    e.instructing staff on how to handle difficult and complicated sales procedures;

    f.examining returned goods and deciding on appropriate action;

    g.taking inventory of goods for sale and ordering new stock;

    h.ensuring that goods and services are correctly priced and displayed, where the staff have authority to give $5.00 off the listed price;

    i.ensuring safety and security procedures are enforced.

31. The nominating sponsor stated that the applicant has the responsibility to keep a safe working environment.

32. The nominating sponsor stated that the applicant prepares the rosters and that the store openings are from 9.00am to 5.30pm Monday to Wednesday; 9.00am to 9.00pm on Thursday and 11.00am to 5.00pm on Saturday and Sunday, where the applicant will usually be rostered off on Sunday and one other day during the week.

33. The nominating sponsor provided evidence that the applicant commenced working with the business in April 2015, as a casual in the sales area and that in 2016 the applicant graduated. At this time, the nominating sponsor needed a Retail Manager for the business. He stated that the applicant had the qualifications and skills, including technical knowledge, as well.

34. The nominating sponsor employed the applicant, as a casual, in April 2015 in the position of sales person while he was a holder of a Higher Education Sector Subclass 573 visa to study a Bachelor of Commerce (Accounting) at Murdoch University, having finished an Associate Degree in Business, Diploma of Accounting, Certificate IV in Accounting, and Certificate III in Financial Services.

35. The nominating sponsor provided evidence that the applicant is paid $65,000, including superannuation and that the business’s accountant pays the wages and superannuation for all the staff, including the casuals.

36. The nominating sponsor stated that the position of Retail Manager was considered in 2016 and advertised on Gumtree on 24 January 2017, where the candidates were mainly from a retail sales background and not technically orientated or were from a technical background without the sales. In this regard, it was stated that the applicant had both technical and sales experience.

37. The nominating sponsor advised the Tribunal that the applicant is not a relative but comes from the same city in Indonesia.

38. The nominating sponsor stated that the future of the business was dependent upon maintaining the applicant.

    Nomination of a position

39. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

40. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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 r.1.13A and r.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.

41. The Tribunal is satisfied on the basis of the evidence from the nominating sponsor and the applicant that the position and business is located in ‘regional Australia’ and that the nominating sponsor applied for Regional Certification, which was granted on 10 February 2017 by Regional Certifying Authority – the Western Australian Government for the occupation of Retail Manager – ANZSCO Code: 142111 and for the applicant on a salary of $52,000 (at that time).

42. The Tribunal is satisfied, that a Retail Manager is required for Mobile Express Repairs and Accessories, Rockingham, with an ABN 33 122 026 322 (ATF Amazing Grace Family Trust - ABN 89 712 518 474) to manage the full scope of the operation, excluding financial and specific business development responsibilities, which are handled by the Director. As such, the Retail Manager, operates the business with duties that are consistent with the ANZSCO descriptor for a Retail Manager, under the direct control of the director. [Case Matter: 11803651 – approval of the standard business sponsor for the nominated position]

43. Further, the Tribunal is satisfied, on the basis of the evidence, that the applicant has been engaged in a position of Retail Manager, wherein all the attendant tasks of a Retail Manager are undertaken by the applicant. As such, the Tribunal is satisfied that the applicant is employed in a genuine Retail Manager position, as required under the regulations.

44. The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the applicant or a person associated with the nominator.

45. Therefore, cl.187.233 is met.

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

47. Further, on the basis that the Tribunal is satisfied that the primary applicant has met cl.187.223 and cl.187.233, it follows that the secondary applicant is a member of a family unit that has met the criteria required in cl.223.311 for the granting of a 187 visa

    DECISION

48. The Tribunal remits the application Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.223 of Schedule 2 to the Regulations;

    ·cl.187.233 of Schedule 2 to the Regulations; and

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; 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.