Panapage Don (Migration)

[2022] AATA 1616

Panapage Don (Migration) [2022] AATA 1616 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Mevan Sanjake Wimalasekera Panapage Don

Ms Thilini Madudushika Wimalasekera

REPRESENTATIVE:  Ms Rachel Magill (MARN: 0601736)

CASE NUMBER:  1903601

HOME AFFAIRS REFERENCE(S):          BCC2018/5213691

MEMBER:Stephen Witts

DATE:7 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212 of Schedule 2 to the Regulations; and

Statement made on 07 April 2022 at 11:49am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Glass GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – technical sales representative – subject of approved position nomination – nominator’s business and financial history and performance, including period of voluntary administration – organisational restructure and return to profit – applicant’s visa history, qualifications, skills, experience and ongoing work in position – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 on 13 February 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 November 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the short-term stream to work in the nominated occupation of Technical Sales Representative ANZSCO code 225499.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482. 212 Of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

4. The applicants appeared before the Tribunal on 7 April 2022 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the nominator, Aventedge Pty Ltd.

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

7. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant is the subject of an approved nomination.

   Requirement for an approved nomination

9. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

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

11. The Tribunal notes that it was provided a copy of the delegate’s decision record regarding the nominator dated 14 January 2019 where it was contended that the application was lodged to facilitate the grant of a visa to the applicant and not to fill a business need. It was also contended that the nominator had not provided sufficient financial information, that it had previously lodged an application for the applicant in 2018, that the applicant has been in Australia on multiple visa subclasses for some years and that the nomination may exist for the purpose of securing a migration outcome for the applicant. It was also noted that the applicant has been working (as of date of decision) as an inbound sales representative since July 2017.

12. The Tribunal also notes that a submission from the applicants’ representative was provided dated 27 January 2022. In this submission was included company and financial material, an organisation chart, an employment contract with position descriptions, a comparison with ANZSCO classifications, advertising material, and other material. In this submission it was stated that the relevant ANZSCO classification includes the operational grouping of sales representative (educational products and services) which aligns with the businesses offering  industry and business workshops and training events and that the position did have caveats including on annual earnings of less than $65,000 and that it excluded low skill tasks such as those based in a front line retail setting, or based in a call centre and do not require a significant technical knowledge of products predominantly involving the selling of educational courses to individual students.

13. The Tribunal notes that the contract information for the applicant included a salary of $65,000 plus superannuation therefore representing a total remuneration of $71,500. The Tribunal also notes that payslips were included, including for an equivalent Australian employee.

14. The Tribunal notes that advertising material was provided stating that an advertisement for the nominated position was posted on LinkedIn in July 2018 until August 2018 and then again from September 2018 until October 2018 and received five applications, but none had sufficient experience in the technical or conference and training sector.

15. The Tribunal notes that it was stated that the nominator’s business provides training and workshops, and that the nominee’s role consists of providing sales service in support of the business and industry events, training and workshops, and that the role is not in a retail setting, call centre, or relates to content without a technical basis or providing educational courses to individual students.

16. The Tribunal notes in the ASIC material provided it was stated the ABN was 35615522168 and the directors of the business are Andrew Worner and Julian Stansmore, and that the previous directors were Irene Stansmore and Priscilla Champaneri. External administrators were also listed.

17. The Tribunal notes that financial material was provided indicating that to end of financial year June 2021 the business had a gross profit from trading of approximately $1.8 million and to 9 December 2020 it had gross profit from trading of approximately $3 million. It is noted that the total salaries and wages and other payments in the July 2021 period was approximately $170,000.

18. The Tribunal notes that a report to creditors was also provided referring to an appointment of trustees to the business on 14 January 2021. A number of creditors were referred to including the ATO with outstanding debts of approximately $880,000.

19. The Tribunal also notes a submission from the applicants’ representative dated 1 April 2022 stating that the nominator is a commercial conference company that develops and runs its own events and not an event management company that exclusively organises events on behalf of third parties. It was stated that the business runs conferences, seminars and workshops providing professional development across some states in Australia on the east coast and also in New Zealand, the United Kingdom and Singapore and that it organises events on behalf of third parties such as industry associations and other organisations.

20. It was also stated that the company previously traded as a profitable business however it was severely affected by the Covid pandemic in 2020 and therefore had to cease organising events until October of that year and reorganise the organisation structure and reduce staff numbers from 35 to 17. It was further stated that even after these changes a further restructure of company debts was necessary and that it went into voluntary administration on 14 December 2020. It was stated that it emerged from voluntary administration in January 2021 and that it has resumed trading and that the future of the business is promising demonstrated by the business making a small profit in 2021 and that for the quarter ended 30 September 2021 the business recorded sales of approximately $1.4 million and that the recovery has been made possible with experienced staff which includes the nominee.

21. According to this submission the position of Inbound Sales Representative or Campaign Manager has existed since the business commenced operating, that the business has previously had two nominations approved under 457 and 482 visas for substantially the same position within the business and that one of these remains employed by the business currently. It was stated that the business has four employees in equivalent positions as the nominee two of which are Australian citizens and the other is on a subclass 482 visa. It was further stated that these four positions are split into the sectors where events are run, and that the nominee has an industry specialisation in the indigenous sector and that the other three positions specialise in other sectors including aged and community services. It was stated that the nominee has been working in this position since July 2017 and is still working in this role and that he was working reduced hours from April 2020 and that now he is back to working full-time.

22. It was stated that the nominee works on various indigenous related events in the organisation including family violence, economic development, health, suicide prevention, housing and homelessness, and other issues related to indigenous affairs and that such activities require active involvement in the sector, attendance at events that the nominee has helped organise, and the development of material to provide expertise to staff involved in these projects. It was stated that without this knowledge the business would struggle to develop events and attract delegates and that the nominee, and the three other sales representatives have been important assets to the business.

23. The Tribunal notes that other material was provided including a list of future conference events and their key course content, more up-to-date financial information including BAS statements, material regarding the nominee’s activities in negotiating prices and discounts and other business activities, and other material.

24. The Tribunal also notes that a review of the duties and responsibilities of a technical sales representative in accordance with ANZSCO code 225499 reveals that such representatives represent companies in selling a range of industrial, medical, and pharmaceutical goods and services to industrial, business, professional and other establishments and that the qualifications required include a bachelor level degree and/or five years of relevant prequalification employment and/or one year of highly relevant employment within the last five years and that the duties and responsibilities include:

    “Compiling lists of prospective client businesses using directories and other sources

    Acquiring and updating knowledge of employers’ and competitors’ goods and services, and market conditions

    Visiting regular and prospective client businesses to establish and act on selling opportunities

    Assessing customers’ needs and recommending and explaining goods and services to them

    Monitoring customers’ changing needs and competitor activity, and reporting these developments to sales management

    Quoting and negotiating prices and credit terms, and completing contracts and recording orders

    Arranging delivery of goods, installation of equipment and the provision of services

    Reporting to sales management on sales made and the marketability of goods and services

    Following up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising

    Preparing sales reports and maintaining and submitting records of business expenses incurred.”

25. At the hearing the Tribunal had a discussion with the nominator and the nominee regarding the application.

26. At the hearing the nominator stated that he first started this business in Singapore in 2012 and then relocated the business to Australia in 2017 as most of his clients were from Australia. He stated that the business struggled significantly during the Covid pandemic because of the inability of the business to provide its traditional model of in-person learning and that it had to pivot to online events which were not particularly successful.

27. It was stated that prior to this the business had been very successful in Australia and won a national business award in 2020. It was stated that the business has 2 key activities, that is workshops and conferences, and that the nominee is vital to both in terms of working closely with clients and business representatives for these conferences and building rapport with these clients; and that with the workshop element of the business he typically deals with front line and middle level managers with between five and 15 years’ experience and that he has an excellent rapport with such business people that has allowed the company to rebuild itself after the difficulties of the last two years.

28. It was stated that the business only had business problems because of the pandemic and there were no systematic financial issues with the company and that it has now restructured itself and doing well financially. It was stated that the business genuinely attempted to employ whoever had the right skills and experience for this role at the time of the advertising of the role and that the nominee is the best candidate taking into account the full breadth of his qualifications and past experience, in particular, his past experience as an executive with the pharmaceutical company, his product knowledge in the area of the conference and workshop business and other factors.

29. The applicant stated that prior to coming to Australia on a student visa in 2015 that he worked for an investment company after leaving school for two years and then he worked for eight years as a sales executive with ‘Sanofi’ a pharmaceutical corporation based in  Sri Lanka and that while here as a student on two successive student visas he completed a certificate IV level qualification in business management and a diploma level qualification in business and a part completed bachelor level degree in business and commerce. He stated that for a time he was also dependent on his wife’s temporary resident visa who arrived here in Australia in 2013 also on a student visa and that they were married in 2018.

30. The Tribunal has considered the evidence provided very carefully and finds that the position in this case of technical sales representative is genuine and that the nominee is carrying out the full breadth of requirements of this role and has been working here in that role for four years and eight months full-time and for four-months part-time during the pandemic. After discussions with the nominator the Tribunal is satisfied in this case that the business did try to find appropriate people in 2018 but struggled to find an Australian citizen to carry out this particular role.

31. For these reasons the requirements of cl 482.212(1) are met.

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

33. The Tribunal finds that as the primary applicant met the criteria for the grant of the visa that therefore the secondary applicant fulfiled the criteria for the grant of the visa.

    DECISION

34. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.212 of Schedule 2 to the Regulations; and

    Stephen Witts
    Member