Pradhan (Migration)

[2024] AATA 697

Pradhan (Migration) [2024] AATA 697 (5 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Suraj

Pradhan

Mrs Nilam Shrestha
Miss Luniva

Pradhan

REPRESENTATIVE:  Mr Sanji Caldera (MARN: 0635492)

CASE NUMBER:  2112966

HOME AFFAIRS REFERENCE(S):          BCC2020/27996

MEMBER:Warren Stooke AM

DATE:5 February 2024

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 and secondary applicants meet the following criteria for a Subclass 482 visa:

·cl 482.212 of Schedule 2 to the Regulations; and

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 5 February 2024 at 10:11am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Medium-term stream – ICT Business Analyst – position associated with the nominated occupation is genuine – applicant is subject to an approved standard business sponsor – members of a family unit – Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved – decision under review remitted    

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212, 482.312

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 8 September 2021 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 3 February 2020. 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 Medium-term stream to work in the nominated occupation of ICT Business Analyst – ANZSCO Code: 261111.

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 applicant was not the subject of an approved standard business sponsor.

4. The applicants appeared before the Tribunal on 10 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bill Huynh, the Managing Director of Calibre Furniture Pty Ltd.

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

6. The applicant confirmed at hearing that he had received a copy of the Department’s decision, which he had read.

7. The applicant stated that he understood the application had been refused by the Department because the nomination by the owner was rejected.

8. The applicant stated that he had submitted a copy of the delegate’s decision to the Tribunal with the application for review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant has an approved standard business sponsor for the nominated occupation of ICT Business Analyst – ANZSCO Code: 261111.

    Genuine position and intention to perform occupation

11. Clause 482.212(2) requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

12. The nominee was granted a Bridging Visa A on 3 February 2020 with no conditions and a Bridging Visa B on 8 November 2022 that permitted multiple entries with no conditions.

13. The nominee stated that he arrived in Australia in February 2016 and held a Bachelor of Information Management from university studies in Nepal and provided evidence of the completion of a Master of Information Technology Management, at La Trobe University, on 16 May 2018.

14. The nominee stated that he commenced employment with Calibre Furniture Pty Ltd in December 2018 and was currently receiving a salary of $70,000 per annum.

    Evidence of Mr Bill Huynh, the Managing Director of Calibre Furniture Pty Ltd.

15. The nominating sponsor provided evidence of an ASIC registration for Calibre Furniture Pty Ltd on 20 July 2010 with the assigned ABN 98 145 309 324.

16. The nominating sponsor stated that Calibre Furniture Pty Ltd is an eCommerce business supplying design furniture online Australia wide and that he was the founder and Managing Director of the business.

17. The nominating sponsor provided information before hearing that Calibre Furniture Pty Ltd was - “Established in 2009, and is a contemporary Australian trade and wholesale furniture supplier. Based on simple, unique, and modern design aesthetics, Calibre Furniture brings quality and new design to the table made for Australian interiors. We combine our passion for design, excellent craftsman’s hip, and fair pricing to provide you with access to distinctive and exclusive furniture pieces.”

18. It was also stated that the business is “Dedicated to challenging the traditional industry, we work with our production partners to ensure quality is achieved at every step. We operate two large warehouses, aiming to keep our best-selling pieces available within a competitive market. At Calibre Furniture, we continue to set ourselves apart in the industry by designing, developing, and manufacturing high-quality furniture. We also create exclusive customised ranges for our clients and tailored packages for large commercial projects and that 13 years on, Calibre Furniture continues to commit to its design values and to provide functional and uncompromising quality furniture for the modern Australian.”

19. The nominating sponsor provided evidence that the position of ICT Business Analyst was advertised on Indeed and with Interior Secrets and that an overwhelming number of applications, in excess of 200, was received, with similar qualifications and that the applicant was interviewed.

20. The nominating sponsor stated that the applicant was willing to take on responsibilities with greater qualifications and potential.

21. It was stated that the applicant had an IT background and a savviness to contribute to projects and was employed at the end of 2018.

22. The nominating sponsor provided the Department with an organisation chart that identified the nominated position reporting to the eCommerce Manager and the Managing Director.

23. The nominating sponsor provided evidence of a sponsorship approval dated from 14 January 2022 to 14 January 2027 [EGODD8L4AV].

24. The nominating sponsor provided evidence of a contract of employment dated 16 January 2020 for the applicant with a salary of $64,850 plus 9.5 per cent superannuation contribution and a subsequent signed contract of employment dated 21 November 2022 for a full-time position on a minimum 2 year contract with a salary of $70,000.

25. The nominating sponsor stated that the contract of 21 November 2022 will continue employment for another 2 years post the grant of a visa.

26. The nominating sponsor stated that superannuation payments were made to the HESTA Superannuation fund.

27. The nominating sponsor provided evidence that the applicant undertook a PTE English language test on 11 October 2023 with an overall score of 70.

28. The nominating sponsor provided evidence that the applicant held a 485 Graduate Temporary visa from 7 February 2018 to 7 February 2020.

29. The nominating sponsor stated that the business employs approximately 28 people, with some casuals in the warehouse.

30. The nominating sponsor stated that the General Retail award applies to the employees.

31. The nominating sponsor stated that the applicant is employed as an ICT Business Analyst and is paid a salary of $70,000 plus superannuation.

32. The nominating sponsor provided an overview of the tasks and duties assigned to the ICT Business Analyst with the following statement:

    “Collaboration with key stakeholders such as the sales and marketing teams, warehouse, suppliers, and logistics company, actively engage in the process of gathering requirements, facilitating design discussions, troubleshooting issues, and rigorously testing features to ensure alignment with evolving business needs. As a critical part of this role, develop comprehensive business requirements documents (BRDs) and functional requirement documents (FRDs), often supplemented with use cases, to effectively convey intricate business requirements to both management and stakeholders. Furthermore, utilize expertise to establish automated workflows within platforms like NetSuite and Shopify, streamlining functional processes to enhance operational efficiency. Example of some workflows created “New Arrival Removed for Out of stock items” and “New Item Getting default setting”

    Conducting comprehensive analyses of customer behaviour, sales trends, and website traffic through Google Analytics, leading to successful enhancements in UI and UX design to improve the customer experience and boost conversion rates. Use NetSuite for rigorous stock data analysis, optimizing website performance and driving sales growth. Additionally, monitoring reorder points and safety stock levels to ensure a balanced supply chain while minimizing holding costs. Collaborating with stakeholders, including Bill, focused on streamlining procurement processes for new orders and maintaining efficient inventory management, crucial for uninterrupted business support. For example, creating an order preparation file for each supplier in Google Sheets, integrating real-time stock data and purchase order history to inform data-driven restocking decisions, thus enhancing operational efficiency within the realm of ICT.

    Utilizing Excel and Shopify backend sales reports to analyse products sale performance, identifying best-selling and underperforming products. Working together with marketing team to run better sales promotions and adding extra discount on those items that are underperforming. Also, gathering and recording customer and sales team feedback for product improvement. Identifying quality and design issues, working closely with suppliers to enhance existing and new products. Collaborating with web and app developers to address feedback and errors reported by the sales team, recommending cost-effective solutions. Using NetSuite for stock data analysis and monitoring to further enhance website performance and drive sales growth within the realm of ICT. Coordinating with warehouse, logistics partners, and suppliers, ensuring timely product deliveries, thereby optimizing the sales operations. Role extended to efficiently managing all essential customs documents from suppliers to facilitate seamless container customs clearance.

    Proficiency in a diverse array of software and tools, including Shopify backend, Oracle NetSuite (ERP), MS Office with advanced Excel capabilities (such as VLOOKUPS, PIVOT TABLES, and FILTERS), MONDAY.com board, and Retail POS systems. These proficiencies equipped to conduct effective analyses and develop project plans, including cost estimation, resource allocation, and project management. The use of MONDAY.com facilitated the meticulous tracking and management of website-related issues, allowing us to update their status based on the implemented solutions. Use of NetSuite to create a report using save search, some of the search created are Calibre ETA for feed, Item Listing Tracking and many more. In addition, I managed product listings on the Shopify platform using HTML and workflows, ensuring the accuracy and timeliness of product information by collaborating with suppliers, warehouses, photographers, copywriters, and the backend team, to provide comprehensive and up-to-date product listings on the website.

    Successful end-to-end implementation of the NetSuite ERP system, taking charge of tasks like data migration, process mapping, data analysis, and reporting, ensuring a seamless transition. Leveraging expertise in Marketplace integrations across platforms like Catch, Kogan, eBay, Amazon, Mydeal, Blockshop, and more, taking responsibility for proposing and executing innovative applications, such as CedCommerce Catch Integration to integrate Catch marketplace with Shopify and Marketplace Connect for eBay and Amazon connections. These initiatives aimed to enhance both system and business operations. Furthermore, I collaborated closely with developers to design and implement a cost-effective in-house Pre-order functional app, effectively replacing third-party applications like Amai PreOrder Manager, consequently eliminating monthly expenses. I also engaged in consultations with the Calibre team and app developers to conceptualize a budget-friendly replacement app for tiered pricing, specifically Bold Custom Pricing: Wholesale, enabling customized pricing structures based on customer type, thereby contributing to significant reductions in company operational costs.

    Took on the responsibility of developing comprehensive training materials for NetSuite ERP and played a pivotal role in offering crucial support for team training, facilitating a smooth transition to the new system. Collaborative efforts extended to working with Ready Grad to establish an efficient platform for intern training, effectively utilizing trainual.com to create training materials and manuals for this purpose.”

33. The nominating sponsor addressed the genuineness of the position with the following statement:

    “ICT Business Analysts work with users to formulate the system requirements, develop system plans and documentation, reviewing and evaluating existing systems. It also involves the role to design and modify the systems to meet users’ business needs.
    The role of an ICT Business Analyst is a key role in the organisation who can analyse and document the current business processed and date, develop, manage and effective dashboard to streamline the business decision-making process, developing system development and marketing project plans and many other related duties. The role of an ICT Business Analyst is a key role in the development of the business. It is important to have skilled and experienced employees to manage this position as it directly affects future projects and the growth of the business.
    The position was advertised on different platforms by a recruitment agent for a month. However, there were no suitable candidates that met the company’s position requirements. Please refer attached LMT report.

    The position of a ICT Business Analyst is an existing role in the organisation managed by the Nominee since last year. This role is a key role in the organisation, and we can see the major growth in the business and the effect of a skilled ICT Business Analyst directly impacting on the growth of the business. So, this role must be filled with a skilled worker with the necessary qualifications and skills to uphold this position. Therefore, the need for a full-time paid employee with the skills to fulfil the role is highly required.
    The Nominee, Suraj has vast practical experience and skills related to the occupation, nominee is highly competent and skilled to continue in the position and at the same time keep a close eye and identify the flaws in the current systems.
    The future operation and growth of Calibre Furniture relies upon the employment of a stable, skilled and enthusiastic ICT Business Analyst, who has a background/experience and someone who has managed a ICT Business Analyst role in the complex and multifaceted IT environments.

    Considering the qualifications and the experience of the nominating sponsor, the nominee meets the
    requirement and will be a valuable asset to maintain the overall operations of the business.
    I believe that I have addressed all the requirements to prove our need to sponsor the Nominee for the position and if you need any further details, please do not hesitate to contact our Migration Agent …..”

34. The nominating sponsor stated that the position required a master’s degree in information technology.

35. The nominating sponsor provided evidence that the applicant and secondary applicants had been granted 186 Visas on 15 December 2023 [EGOVNNWPM6] with Calibre Furniture Pty Ltd.

36. For these reasons the requirements of cl 482.212(2) are met.

37. The Tribunal is satisfied that on the basis of the decision by the Tribunal, as currently constituted in Case Matter 2110253 for the nominating sponsor that provided a substitute decision approving the nomination, the Tribunal is satisfied that the applicant is subject to an approved standard business sponsor for the nominated occupation of ICT Business Analyst – ANZSCO Code: 261111.

38. The Tribunal is satisfied that on the basis that the primary applicant has met the requirements for the grant of a 482 visa it follows that the secondary applicants are members of a family unit that has met the required criteria for the grant of a 482 visa.

39. Further, the Tribunal notes that the applicants were granted a 186 visa on 15 December 2023, which was confirmed in evidence by the nominating sponsor.

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

    DECISION

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

    ·cl 482.212 of Schedule 2 to the Regulations; and

    ·cl 482.312 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member