Ho (Migration)

[2022] AATA 3363

Ho (Migration) [2022] AATA 3363 (22 August 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Thi Nhu Hang Ho

Mr Richard Boon Koon Lee

REPRESENTATIVE:  Mr Joshua Ferreira (MARN: 1276739)

CASE NUMBER:  1916220

HOME AFFAIRS REFERENCE(S):           BCC2018/1129219

MEMBER:  Stephen Witts

DATE:  22 August 2022

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 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 22 August 2022 at 9:38am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Buyer – subject of an approved nomination – 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).

1. The applicants applied for the visas on 9 March 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. 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.

1. 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 retail buyer ANZSCO code 639211.

1. 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.

1. The primary applicant, Thi Nhu Hang Ho, appeared before the Tribunal on 18 August 2022 to give evidence and present arguments.

1. The Tribunal also received oral evidence from the nominee, Hueken Pty Ltd.

1. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant is a subject of an approved nomination.

1. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record pertaining to the nominator by the applicant. In this decision it was contended that it was not satisfied that the nominee was carrying out the duties and responsibilities of a retail buyer in accordance with ANZSCO code 639211. In particular it was asserted that the applicant was carrying out such tasks as ordering price labels, checking stock levels, creating documents to monitor sales, creating promotional posters, editing the wholesale and retail price list, and converting file formats; and that these tasks appear to have been usually delegated by an assistant or a general manager and that they would generally be low level tasks that did not necessitate decision-making responsibility and that although the position description provided by the nominator might appear to correspond with some of the tasks listed in the relevant code that in actual fact the evidence provided via emails sent in the business amongst other things suggest that the tasks correspond to a more low-level position description for roles such as purchasing and supply logistics personnel that may be

more appropriately covered by a lower skill level occupation such as ANZSCO unit group 5911 referring to purchasing and supply logistics clerks.

1. The Tribunal notes that evidence has been provided by the applicant prior to the hearing including an agent’s submission, financial and company tax material, profit and loss statements, an employment contract for the nominee, an organisation chart, pay information and tax information for the nominee, some material relating to the business including supplier lists and stock lists, some photos situated in the business, and a position description for a retail buyer; and other information.

1. The Tribunal notes that in the submission provided by the applicant’s agent dated 30 June 2022 it was stated that the nominator operates an Asian food retail store in Cairns in Queensland, a regional area in Australia, that it has operated since 1980 and that the current owner purchased it in 2016. It was stated that the nominee was employed in 2016, that the base salary offered to the nominee is $57,000 per annum which it was stated is a salary commensurate with her qualifications and experience based on an analysis of the annual market salary rate for a retail buyer, and that the owner of the business is Mr Gary Lee.

1. It was stated that the owner has daily input into the business operation and that he and the business manager, Ms Helen Chia, the owner’s wife, make high-level decisions and that the staff have different levels of autonomy in decision-making, that the store stocks approximately 5000 different products, that it purchases its products wholesale from approximately 70 different suppliers and sells direct to the public; and that a business of this size must have a dedicated retail buyer to ensure efficient operation. It was further stated that most of the product prices are pre-set but that the nominee can negotiate some prices based on quantity and that the nominee is responsible for the direct contact with all suppliers and that she speaks multiple languages including Vietnamese, Chinese, and English.

1. The Tribunal notes that it was further stated that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that it was advertised on various platforms nationally and locally, that no application of interest was received from local people with the relevant skills and experience, and that there is a genuine need for a paid employee to run the operations as a retail buyer. It was also stated that the owner and the manager is occupied with other duties and that therefore a dedicated employee is required to look after the purchase and management of all stock. It was further stated that the application should not be refused and that the business is operating and has demonstrated significant growth in its operations and that it now operates two stores under its name and that the nominee is responsible for the products of both stores.

1. The Tribunal notes that in the financial material provided company business register material including an ABN was provided, and that in the financial statements it was stated that to the year ending June 2020 the business made a loss of approximately $130,000 and that in the previous year it made a profit of approximately $80,000. Information was also provided indicating that the total trading income business in those years was approximately $2 million.

1. Tribunal notes that an employment offer letter was provided dated 8 March 2018 for the nominee to work as a full-time “shop manager”.

1. The Tribunal notes that an organisation chart was provided indicating that there is a director in the business as stated above and that there is also a general manager, Ms Helen Chia the owner’s wife, who is an Australian citizen, the nominee who is a buyer, and other members of staff including 3 warehouse and delivery driver employees and 5 retail staff some of which are Australian citizens and some of which are temporary visa holders.

1. The Tribunal notes that it is also stated that the duties and responsibilities of the position reflect those defined as a retail buyer under the ANZSCO code and includes: analysing product sales figures and warehouse inventory, developing and implementing purchasing plans for the product range, working with all levels of staff to monitor sales targets, maintaining frequent contacts with restaurants and other wholesale clients, negotiating purchase, promotion and supply arrangements, conducting market research, negotiating with suppliers and vendors, managing the purchasing and delivery of products, monitoring inventory, managing administrative tasks such as purchase orders, assisting with marketing and sales strategies, presenting analytical reports such as market research, reporting issues with suppliers to the manager or owner, and keeping abreast of competitors and products on the market.

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

1. The nominator stated that he and his wife work in the business and that over recent times they now own another business which they are part owners with other business colleagues and provided evidence that the business has grown significantly over recent times. The nominator also gave evidence that he and his wife are at retirement age and no longer work in the business for significant amounts of time but oversee the businesses as they develop. The nominator also provided evidence in regard to his strategy to franchise this form of Asian food and other ancillary services more widely in North Queensland. The Tribunal found this evidence credible after discussion regarding the new business in Townsville. The Tribunal discussed with the nominator the role of the nominee in both these businesses as a retail buyer.

1. The nominee stated that she first came to Australia from Singapore in 2015 on a student visa and achieved a bachelor level qualification and that she has worked in the business first as a part-time employee from 2016 and then as a full-time employee over the last few years. The Tribunal had a detailed discussion with the applicant regarding the duties and responsibilities of the nominee noting the nominee’s responsibility for cash balancing and the budget generally, her buying activities, her staff management, and the other activities she has worked in and progressed for the new business.

1. After careful consideration the Tribunal finds that the nominee is genuinely carrying out the duties and responsibilities of a retail buyer, that she has been doing this now with the same nominator for several years, and that it can be anticipated that she can remain employed with the applicant for at least the next two years.

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

Nomination of a position

1. 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.

1. 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 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.

1. The Tribunal finds that the applicant has met all the above requirements.

1. Therefore, cl 187.233 is met.

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

DECISION

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

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 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

(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.