Klein (Migration)

[2020] AATA 3711

Klein (Migration) [2020] AATA 3711 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Layla Magdalena Sophie Klein
Mr Kynan Harley Burrows

CASE NUMBER:  1912190

HOME AFFAIRS REFERENCE(S):          BCC2018/767798

MEMBER:Warren Stooke AM

DATE:8 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicants meet 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

·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 08 September 2020 at 9:57am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – tribunal approved nomination – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cl 187.223, 187.233, 187.311, rr 1.13A, 1.13B, 5.19(4)

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 (the Act).

2. The applicants applied for the visas on 15 February 2018. 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 (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 Customer Service Manager - ANZSCO Code: 149212.

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 nomination lodged by Emma and Tom Foods Pty Ltd was refused by a delegate of the Minister for Home Affairs.

6. The applicants appeared before the Tribunal on 28 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Michael Davis, the representative of 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 for the position of Customer Service Manager - ANZSCO Code: 149212.

   Evidence of the Nominating Sponsor – Mr Michael Davis

10. The nominating sponsor provided evidence that the business sells healthy drinks and snacks, with supply to major supermarket and brand chains and companies. The business supplies markets nationally in Sydney, Brisbane, Perth and Canberra, together with regional areas. In this regard, it was stated that 95-98 per cent of the business is wholesale to cafes and delicatessens.

11. The nominating sponsor stated that the Head Office is in Melbourne, where they have 5 to 6 employees.

12. The nominating sponsor stated that he is the National Sales Manager for the business, which has a turnover of $15m and an annual growth rate of between 10 and 15 per cent. In this regard, it was stated that he has 5 per cent equity in the business and his wife has 45 per cent, with the other partner holding 50 per cent equity and that he has had 14 years with the business.

13. The nominating sponsor stated that the business was started in Melbourne and evidence was provided that the business has 5 employees in New South Wales, where they supply to major supermarket chains, including Woolworths and Coles.

14. The nominating sponsor confirmed to the Tribunal that the employees were provided with a Fair Work Information Statement at the time of engagement.

15. The nominating sponsor provided evidence that the applicant is currently employed in the Alexandria distribution centre as a Sales Delivery and Merchandising Representative, pending her grant of a 187 visa to assume the role of Customer Service Manager based in Gosford, NSW.

16. The nominating sponsor provided evidence that the Customer Service Manager will report to the Area Sales Manager based in Gosford, and that the Customer Service Manager will be responsible for effectively managing the day to day operations of the Service Centre in the NSW Central Coast while maintaining efficiency, profitability and a high standard of customer service. In this regard, the nominating sponsor provided documentation that detailed the responsibilities required of the position, as follows:

    ·Compiles clients / service information and recommending strategic plans and reviews; preparing and completing action plans. Implementing productivity, quality, and customer service standards;

    ·Maintains contact with customers, visiting rental units, conducting surveys, benchmarking best practices and analysing information and applications.

    ·Assists with recruitment, selection, orientation, training, coaching, counselling, and disciplining employees; communicating job expectations.

    ·Plans, monitors, appraises, and reviews job contributions; planning and reviewing compensation actions; enforcing policies and procedures.

    ·Improves customer service quality results by studying, evaluating, and re-designing After-Rental processes; establishing and communicating service metrics; monitoring and analysing results; implementing changes.

    ·Maximizes customer operational performance by providing resources, resolving problems; disseminating new products; detecting and diagnosing problems.

17. In addition, the nominating sponsor provided evidence that the position of Customer Service Manager required the following knowledge and abilities:

    ·Knowledge of office practices, procedures, and computer software programs.

    ·Knowledge of correct English usage and grammar.

    ·Knowledge of the organization and composition of letters, minutes, reports, charts, and spreadsheets.

    ·Ability to follow, apply, interpret, and explain instructions and/or guidelines.

    ·Ability to determine work priorities.

    ·Ability to make decisions and take appropriate actions.

    ·Ability to meet schedules and deadlines of the work area.

    ·Ability to perform mathematical calculations.

    ·Maintain financial records and make basic math computations quickly and accurately

18. Further, evidence was provided in the following statement concerning the nominated position:

    “The purpose of the Service Manager is to perform service duties and coordinates activities in conjunction with the NSW Sales Manager to ensure that all products offered are delivered in an efficient manner in order to maximize client satisfaction and retention. The position is existing and vacant through natural attrition.

    In our industry, as in many other industries, it is of extreme importance to build on existing customer relationships. There are significant costs in finding new clients in the form of Marketing and Sales costs so retaining clients not only have the potential of improving revenue in form of subsequent sales, it also lowers Marketing costs and allows for new prospects through word-of-mouth marketing.”

19. The nominating sponsor provided evidence that the applicant is currently subject to a contract of employment for a position in the Alexandria Distribution Centre, which was signed on 7 June 2016 and that the applicant will be subject to a contract of employment for the Central Coast – Customer Service Manager position from 8 May 2018 and employed for at least 2 years on a salary of $55,000 plus 9.5 per cent superannuation following the grant of permanent residency.

20. The nominating sponsor stated that the applicant is currently occupying the position, sharing some of the more clerical tasks with the Sales support. He stated that there are currently no potential employees in Gosford that meet the qualifications and experience required for the position.

21. In a statement from the nominating sponsor it was submitted that it has been demonstrated that:

    ·     The business requires Customer Service Manager;

    ·     The terms and conditions of employment are no less favourable than the terms and conditions that would be provided to an Australian citizen / permanent resident for performing the same work;

    ·     The nominated person will receive a base salary of $55,000.00 per year, commensurate to market rates and above relevant award;

    ·     The position cannot be filled by an Australian citizen/permanent resident who are living in the same local area.

    Evidence - Ms Layla Magdalena Sophie Klein

22. The applicant provided evidence that she is from Dortmund, Westphalia, Germany and that she arrived in Australia on 8 January 2014.

23. The applicant confirmed in evidence that she completed an IELTS English test and scored an overall score of 9.0.

24. The applicant provided evidence regarding the duties of a Customer Service Manager, as follows:

    a.Training other staff;

    b.Develop strategies with the NSW Manager;

    c.Grow the product and develop new procedures;

    d.Provide assistance to the teams;

    e.Maintain customer contacts and support.

25. The nominee stated that she has been with the company for 4 years and the position will provide a salary of $55,000 p.a.

26. The applicant provided evidence through the submission of her tax return for the financial year 1 July 2018 to 30 June 2019, that she was employed by Emma and Toms Foods Pty Ltd, as a Sales, Delivery and Merchandising Representative, had gross earnings of $71,006, with total tax withheld of $16,094.

27. The applicant stated that she is in Australia with her partner, who comes from Stratford, Midlands, England.

28. The applicant provided evidence that she has completed the following courses of study in Australia:

    a.Certificate III in Tourism – completed 9 December 2016;

    b.Certificate III in Business – completed 5 March 2017;

    c.Diploma of Leadership and Management – completed 17 June 2017;

    d.Certificate IV in New Small Business – completed 8 April 2018.

    Nomination of a position

29. 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.

30. 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.

31. Based upon the evidence, the Tribunal is satisfied that the applicant, who is currently working with the nominating sponsor as a casual Sales, Delivery and Merchandising Representative, has been employed by the nominating sponsor, for the last 4 years and that upon grant of her 187 visa will be assigned as a full-time employee to the Gosford office of the business, as the Customer Service Manager.

32. The Tribunal as currently constituted in Case Matter: 1909410 approved the nominated position of Customer Service Manager – ANZSCO Code: 149212. As such, the Tribunal is satisfied that the applicant meets the requirements for the grant of a 187 Direct Entry visa. 

33. Therefore, cl.187.233 is met.

34. Further, on the basis that the Tribunal is satisfied that the primary applicant has met cl.187.233, the Tribunal is satisfied that the secondary applicant is a member of a family unit that has met the required criteria for the grand of a 187 Direct Entry visa.

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

    DECISION

36. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicants meet 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

    ·cl.187.311 of Schedule 2 to the Regulations.

    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

    (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.