Lee (Migration)

[2023] AATA 2293

Lee (Migration) [2023] AATA 2293 (13 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juwon Lee

REPRESENTATIVE:  Mr Benjamin Purnell (MARN: 1573093)

CASE NUMBER:  1923101

HOME AFFAIRS REFERENCE(S):          BCC2018/155486

MEMBER:Stephen Witts

DATE:13 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets 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 13 July 2023 at 11:12am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – office manager – subject of approved position nomination – related nomination application refused – genuine need for position – documentary and oral evidence from applicant and nominee, and supporting statements – increased volume, expanded product range and international exports – nominee’s age and applicant’s work in position – recruitment attempts over some time – family-owned business in rural location with higher wages in mining sector – infrastructure grants – 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 January 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of office manager ANZSCO code 5121111.

5. The delegate refused to grant the visa 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.

6. The applicant appeared before the Tribunal on 13 July 2023 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Mr Sydney Allenden from Allenden Seeds Pty Ltd.

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present is whether the applicant is the subject of an approved nomination.

    Nomination of a position

11. Clause 187.233 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, 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.

12. 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.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record for the nominator, Allenden Seeds Pty Ltd, by the applicant.

15. In this decision it was asserted that the nominator had not provided sufficient evidence to demonstrate that there was a genuine need for the company to employ a paid employee to work in the position of office manager under their direct control. It was contended by the delegate that the company commenced trading in August 2015 and that the nominator has stated that it employs eight Australian employees and one temporary visa holder at that time.

16. It was also asserted by the delegate that there is not sufficient evidence submitted to demonstrate that the business had changed significantly enough to require a full-time office manager. In particular it was asserted that the employment contract, job description, and RCB certification provided was insufficient.

17. The Tribunal has considered all the material before including evidence provided prior to the hearing at evidence given at the hearing.

18. The Tribunal notes that it has been provided with a submission dated 6 July 2023 which includes letters of support from various parties, a list of duties and responsibilities for the nominee, and some business and financial information. It was asserted that there is a continued and genuine need for an office manager to work in the business full-time and that this agricultural business requires an office manager to undertake the necessary tasks and duties to assist the business. It was also asserted that the business has expanded in terms of its increased product range and that the increase in the volume of the business in terms of its physical grading, processing, and packaging of its products has been automated and that it has been impossible to find reliable labour to cover business expansion. Information was provided indicating that most elements of the business products provided to market have increased by up to 20% since 2020.

19. It was also asserted that this expansion of the business has not been reflected in an increase of staff due to these factors and that the data and financial information provided does demonstrate the increase in the volume of the product and sales of the business, and that the business requires long serving and highly experienced staff, including the office manager, to fill the roles. It was asserted also that further information provided demonstrates the increased work and continued need for the nominee to undertake the role of office manager, and that the nominee has been filling this role for many years.

20. It was also stated that the owner of the business is 70 years old and relies very heavily on the nominee who has significant responsibility to ensure the operations of the business run smoothly and that despite recruitment attempts over some time it has been difficult to find appropriate skill sets to fill this and other roles.

21. The Tribunal notes that evidence was provided from an employee in the business managing export compliance matters referring to the nominee’s role as an office and business manager. Also included was a testimonial from the shed manager in the business to the same effect. Also included were other testimonials from suppliers and transport suppliers to the business.

22. The Tribunal notes that a list of duties and responsibilities for the role of office manager in this business was provided as follows:

    “Arrive at office 20 minutes before everyone is due to start to organize the day/week.
    • Brief everyone about the day/week with targets required and a general overview of what
    need to be achieved for the day/week.
    • Go through previous week sheets and calculate and organise pays (on Monday’s).
    • Contact Vicary to discuss and organise the container schedule for the next order of
    shipments.
    • Once containers are scheduled, organise, and liaise with transport companies for the pickup,
    loading and delivery of packed containers.
    • Ensure correct bags are ordered/in stock. Check bags, labels, glue are always in stock and up
    to date.
    • Then a grading schedule is organised and created with the order of batches that are to be
    graded and bagged.
    • From the grading Schedule organise a delivery schedule for more product to be delivered
    from growers to our facility.
    • For the delivery schedule to be finalised, liaise with growers and transport companies to
    organise and dates for deliveries. This can take many phone calls and rescheduling as
    obstacles often arise.
    • Check consumables and reorder as necessary to ensure that the plant doesn’t have to stop
    and there is minimal down time in the office.
    • Collect receival dockets daily and record in the receival book and receival spread sheet.
    • After each Grower batch line is finalised, complete a detailed grading report which is sent to
    the grower and to Vicary Produce so payment can be finalised.
    • Once a shipment has been completed, organise for the final documents to be sent through
    to Vicary.
    • Throughout the week ensure the hygiene records have been completed. This is a

    requirement for the establishments export Licence.”

23. The Tribunal notes that material was also provided on 11 May 2023 which included a letter of support from the applicant, various website extracts and business information from Facebook, articles regarding the business and grower demand in Queensland, other community articles, job advertisements in the local area, financial information, market outlooks, financial information for the business, invoices for suppliers and clients, PAYG summaries for the nominee/applicant, tax returns, and other material.

24. Included was information about the business stating that it has been operating since 1978 and that as the business developed it needed dedicated positions within it to address the range of roles required, that it is a specialist seed grading and packing company producing products for overseas export and that the product graded and sold by the company includes mung beans, wheat, chickpeas, millet, cowpea, lablab, and Leucaena. It was stated that the company’s main export markets are China, India, Sri Lanka, Philippines, Europe and Canada, and that the business produces 5000 bags of seed per day with 6000 tonnes of storage facility on site.

25. Included also was information regarding the area in which the business operates in remote rural Queensland about 20 minutes’ drive from the nearest town of Biloela, and that the area provides various mining jobs that offer significantly higher wages compared to other local jobs and this has created significant problems for the business securing staff. Regarding the nominee it was stated that he first started work for the business in June 2014 and as the business grew and developed, he became the office manager in January 2018 and that he continues to work with the business. It was stated that nominee has an excellent work ethic and is needed in the business.

26. It was further stated that the business is family owned and managed since 1978 and that Sydney and Charmain Allenden are the company directors and that their sons Clint and Trent are the Grading Manager and Farming Operations Managers respectively.

27. It was stated that initially the family attempted to share the tasks and duties of office manager however with the growth of the business this was no longer feasible and that in 2015 the business identified a need for it to fill an office manager position. It was stated that it was advertised in 2017 also but the business could not find or attract a locally suitably qualified and experienced office manager. It was stated that advertising for the role was also undertaken on several occasions up to 2022 and these advertisements were placed with various recruitment agencies, Seek, Jora, JobSearch, and local newspapers. It was also noted that the position does have RCB approval.

28. Information was also provided regarding various grants provided by government agencies including the Rural Economic Development Scheme and by government departments, and that infrastructure grants are being provided in 2023 to purchase additional silos, shed and grading equipment, to assist with the research and development of grain and seeds in Australia. It was stated that this features as part of a $45.8 million investment by the government to benefit regional communities in Queensland and that the business is part of that investment initiative. It was stated that the domestic and global impact of the pandemic and extreme weather events over the past years has affected the sector but that the business has continued to operate successfully and that the evidence would suggest that it will continue to do so into the future.

29. Information was also provided regarding the location of the nominated position in rural Queensland. Regarding the financial capacity to support the position it was stated that the business can demonstrate from its profit and loss statements that it has sufficient accrued income to cover the nominee’s wages both now and into the future and that the nominee’s current salary is $75,000 per annum which it was stated is a market rate.

30. The Tribunal notes that the duties and responsibilities of an office manager as defined by ANZSCO code 512111 are defined as:

    “Contributing to the planning and review of office services, and setting priorities and office service standards and allocating human resources, space and equipment

    assigning work to and monitoring work performance of staff

    managing records and accounts of the office

    liaising with Professionals to coordinate office business and to facilitate resolution of problems

    ensuring office equipment and supplies are maintained

    ensuring compliance with occupational health and safety regulations

    ensuring work complies with relevant government legislation, policies and procedures

    coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision”

31. It is further stated in this definition that most occupations in this unit group require a skill level commensurate with a diploma or advanced diploma and/or at least three years relevant experience.

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

33. The nominator stated that the nominee/applicant has been working in the business full-time for five years engaged solely as an office manager. He stated that it has been very difficult finding staff in this remote location and that they have looked for Australian citizen staff but that the mining sector in the area has dominated employment and provides salaries that are a lot higher.

34. The Tribunal had a detailed discussion regarding the duties and responsibilities of the nominee, regarding assigning work and monitoring work performance of staff where evidence was provided that the nominee does monitor the performance of staff in particular assigning duties and activities to the truck drivers employed in the business and assigning work activities through the grading schedule.

35. Evidence was also provided that the nominee manages the records and accounts of the office including that the day-to-day business activities and invoicing in the office is maintained solely by the nominee. Evidence was also provided of the nominee’s role in terms of ensuring compliance with Occupational Health & Safety regulations and his engagement in the general training and HSE training of staff and subcontractor staff, also evidence was provided regarding the nominee’s role in ensuring government legislation and procedures are followed particularly regarding the requirements of the Department of Agriculture. Evidence was also provided about the nominee’s activities coordinating the office business and resolution of problems and ensuring all supplies are maintained.

36. The nominee stated that he first came to Australia in 2012 on a visitor visa and that he worked in an abattoir for six months before travelling for a while around Australia and that he also studied business while on a student visa for three years prior to starting work full-time with the company in 2018. The Tribunal also had a detailed discussion with the nominee about the above duties and responsibilities.

37. After careful consideration the Tribunal finds that there is a genuine need to employ the nominator in the nominated occupation of office manager in accordance with the above regulations.

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

39. Therefore, cl 187.233 is met.

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

    DECISION

41. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets 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.