Rollex Australia Pty Ltd (Migration)

[2022] AATA 2741

Rollex Australia Pty Ltd (Migration) [2022] AATA 2741 (5 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEWAPPLICANT:  Rollex Australia Pty Ltd

VISA APPLICANTS:  

Mr Rhyanver Alanes Bugawan

Mrs Sheilyn Laddaran Bugawan

Miss Marriane Jeizelle Laddaran Bugawan

Miss Sheera Mhae Laddaran Bugawan

REPRESENTATIVE:  Ms Natalie Fung (MARN: 0323797)

CASE NUMBER:  1904287

HOME AFFAIRS REFERENCE(S):          BCC2018/3981267

MEMBER:Penelope Hunter

DATE:5 August 2022

PLACE OF DECISION:  Sydney

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

·cl 482.212(2) of Schedule 2 to the Regulations.

Statement made on 05 August 2022 at 10:24am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) – Subclass 482 (Temporary Skill Shortage) – medium-term stream – electronic instrument trades worker – genuine position and genuine intention to perform position – family relationship between general manager of nominator and visa applicant not declared in visa application or department interview – married to sisters – anonymous tip-off – applicant not related to owners or directors, and no close relationship with general manager – introduction to role through colleagues – labour market testing – specialised skills and experience – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 376(3)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(2)

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 4 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 review applicant is the nominating employer, Rollex Australia Pty Ltd (Rollex Australia). The first named visa applicant, Mr Rhyanver Alanes Bugawan, is the primary visa applicant (Mr Bugawan). The second named visa applicant, Mrs Sheilyn Laddran Bugawan, is his wife, and the third and fourth named visa applicants are their daughters.

3. The visa applicants applied for the visas on 28 June 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, Mr Bugawan is seeking the visa in the Medium-term stream to work in the nominated occupation of Electronic Instrument Trades worker for the review applicant.

4. The delegate in this case refused to grant the visa on the basis that Mr Bugawan did not satisfy the requirements of cl 482.212(2) of Schedule 2 to the Regulations because the delegate was not satisfied that his intention to perform the position was genuine or that the position associated with the nominated occupation was genuine. The delegate considered that Mr Bugawan had used his family relationship to apply for the position and this influenced his nomination.

5. Mr Christopher Ng, general manager of Rollex Australia, appeared before the Tribunal on 9 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bugawan and Mr Craig Carver, director of Rollex Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. The hearing took place via MS Teams video.

6. Rollex Australia was represented in relation to the review, and their representative also participated in the hearing.

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

   Section 376 Certificate

8. Contained within the documents produced by the Department was a Certificate dated 15 March 2019, issued under s 376 of the Act. Under s 376 of the Act a delegate of the Minister may certify in writing that anything contained in a specified document, or the information contained within, should not be disclosed. The relevant Certificate related to a single identified document.

9. The Tribunal found the Certificate to be valid. The Certificate was dated and signed, and sets out the reason for the confidentiality, that is because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal is satisfied that this is a valid reason for the issue of a certificate.

10. The Tribunal disclosed the existence of the Certificate to the review applicant in writing on 6 June 2022, provided a copy and invited submissions as to validity. It was confirmed at the hearing that Rollex Australia did not dispute the validity of the Certificate.

11. The substance of the matter covered by the Certificate was considered relevant to the review application. The Tribunal exercised its discretion pursuant to s 376(3)(b) of the Act and partially disclosed to Rollex Australia the substance of the information in writing and pursuant to the provisions of s 359AA of the Act at the hearing. This information was that an anonymous tip off was received by the Department to the effect that the visa application under review was a case of trying to get a family member into Australia. Where relevant the Tribunal has set out the response of Rollex Australia and Mr Bugawan to this information below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether Mr Bugawan as primary visa applicant satisfies cl 482.212(2).

    Genuine position and intention to perform occupation

13. 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.

14. The decision record of the delegate reveals that the Department was concerned that there had not been a full disclosure of the relationship between Mr Bugawan and the general manager of Rollex Australia, Christopher Ng. As noted in paragraph 11 above, the Department had received an anonymous tip off regarding the visa application. The following also transpired:

    i.In the visa application form, when asked whether the nominee had an existing relationship with any of the owners, directors, principals or partners of the review applicant, Rollex Australia had responded, “No”.

    ii.On 22 October 2018, the Department then wrote to Rollex Australia and requested further information including how they came to recruit for the position, and whether there was any personal/and or family relationship between any owners/directors/other persons connected with the business.  On 31 October 2018, Mr Christopher Ng, on behalf of Rollex Australia, provided a letter to the Department to the effect that they had tried to recruit locally for the position but of those shortlisted for the position, the first candidate had taken up another opportunity and the second candidate left after several months, before completing training. It was then claimed that Mr Bugawan was recommended by one of the managers of Rollex Australia who previously worked with him. It was claimed that the position always existed within the review applicant’s business and became vacant when their Australian technician left. It was further stated that Mr Bugawan was not related to any owners or directors of the busines. He was an acquaintance of one of the managers of Rollex Australia who previously worked with him and recommended Mr Bugawan’s skills to management.

    iii.On 8 November 2018, the Department’s offshore post (the offshore post) conducted an interview with Mr Bugawan. During the interview, Mr Bugawan, when asked if he had any friends or relatives in Australia, responded that he had friends, and identified Dennis Llanillo, Joel Buscato and Christopher Ng. When asked how he knew these people, Mr Bugawan said he knew them through his former employer and that they were colleagues. He claimed that his friend Dennis Llanillo referred him for the position, and he was interviewed twice by Christopher Ng, the general manager of Rollex Australia.

    iv.On 9 November 2018, the offshore post telephoned Mr Bugawan and asked, among other things, details of his wife’s siblings and partners. It was revealed that his wife’s sister was the partner of Christopher Ng, who had interviewed him for the nominated position. Mr Bugawan claimed that he had not disclosed the relationship as he was not sure if Christopher Ng was married to his wife’s sister. He further disclosed that if granted the visa, he and his family planned to stay temporarily with Mr Ng in Australia.

    v.On 12 November 2018, Mr Christopher Ng sent a statement to the Department, which said: “I wish to let the good office know that besides being a former colleague in the previous company, Target Display, Mr Rhyanver Bugawan and I are also “in-law” related due to the fact that his wife and my wife are sisters. However our working relationship remains strictly professional”. Further in the letter, Mr Ng stated: “lastly I wish to re-confirm that Mr Rhyanver Bugawan is not related in any way to the directors or owners of Rollex Australia, Mr Craig Carver and Roderick Head.”

15. In their decision record the delegate commented that they had serious concerns about Mr Bugawan’s initial claim that he did not have any relatives in Australia. As Mr Bugawan knew the hiring general manager for some years, and he had seen him with his sister-in-law on vacation, the delegate considered that it was reasonable to consider that the relationship was known to him. The delegate also had concerns that the attempts to fill the position by Rollex Australia were only “on paper” attempts and that Mr Bugawan may have used his family relationship to apply for the position.

16. The Tribunal put to Mr Ng at the hearing that there had been opportunities to disclose the in-law relationship between himself and Mr Bugawan prior to the interview of Mr Bugawan by the off-shore post in the Philippines. Mr Ng told the Tribunal that theirs was not a close family relationship. He had been living in Australia for over 10 years and the interest in Mr Bugawan for the position came due to his skills and experience and their former working relationship at Target Display. Mr Ng did not consider that he had any ownership in the business. It is demonstrated through various company documents submitted to the Tribunal that he was not a director or shareholder and Mr Ng claimed that he was not aware that the relationship should have been disclosed. Mr Ng further rejected that there had been any attempt to mislead or deceive the Department as to their relationship. He claimed that it was not a case of trying to get a family member into Australia but to fill a genuine vacancy. Mr Ng said that the shortage of technicians for Rollex Australia was such that even though he is a manager, he was required to spend a significant amount of time on the tools just to service their customers and this was not sustainable. In his separate evidence, Mr Bugawan claimed that because there was no blood relationship with Mr Ng, he believed that he had answered the questions of Departmental officers correctly. His introduction to the role came through former colleagues from Target Display and he had disclosed to the interviewing officers that he had worked with Mr Ng and others at Target Display in the Philippines. The Tribunal is unable to make a positive finding that information provided by the review applicant or the first named visa applicant was deliberately false or misleading in a material way.

17. In their pre-hearing submissions and oral submission to the Tribunal, considerable evidence has been provided about the business of Rollex Australia. The company was registered in 2007 and supplies a range of food processing, food packaging and weigh labelling equipment to the retail and industrial food sector. It has been approved as a Standard Business Sponsor for over 10 years. The Tribunal is satisfied, from the written and oral evidence, that the nominated position of Electronic Instrument Trades Worker (Special Class) (ANZSCO 342315) is well established in the business of Rollex Australia and is integral to the services that they provide.

18. The Tribunal also assessed the evidence as to whether the vacancy that Rollex Australia was trying to fill through the sponsorship of Mr Bugawan was genuine, and not just an “on paper” recruitment. The material before the Tribunal demonstrates that, upon the role becoming vacant, Rollex Australia undertook recruitment within Australia which satisfied the requirements for labour market testing, and that they had attempted to fill the position with local candidates only to have those candidates either withdraw or resign from the position after a few months. It was submitted that the candidate for the role had to hold niche and specialist skills, and not many who applied for the role had relevant experience in weigh labelling products.

19. The evidence is that Mr Bugawan was a former colleague at a similar company, Target Displays, in the Philippines, with several of the current and former staff of Rollex Australia, particularly, Mr Dennis Llanillo, Mr Joel Buscato and Mr Christopher Ng. The submissions to the Tribunal are that it was Mr Buscato who had recommended Mr Bugawan for the role when he was considering moving on. Mr Ng confirmed in his evidence that he interviewed Mr Bugawan for the position, sounded him out about his experience, the equipment he was working with and his satisfaction with his position at Target Displays. Mr Ng maintained that the approach, or consideration, of Mr Bugawan for the position did not come through their wives, and their in-law relationship was not a factor in his initial consideration. Rather, Mr Bugawan was offered the role on the basis of his skills and qualifications. Additionally, several staff members knew first-hand of Mr Bugawan’s work capabilities and ethic. It was known that Mr Bugawan was a long term employee of Target Displays, and one of the ongoing difficulties that Rollex Australia faced was maintaining staff long term. The evidence to the Tribunal was that Rollex Australia would prefer to recruit within Australia as there were significant costs in sponsoring overseas staff. However, the position had remained consistently vacant and several attempts at recruitment had been undertaken since Mr Bugawan had applied for the visa under review. The evidence is that these attempts had only met with short term success. The Tribunal has been provided with evidence of advertising, recruitment attempts and staff turnover at Rollex Australia. Mr Craig Carver also provided evidence to the Tribunal that he was aware of the relationship between Mr Ng and Mr Bugawan but that it was due to the latter’s skills, experience in performing installation, fault diagnosis, repair and maintenance of retail and industrial food packaging and weighing equipment that he was offered the position.  Since the visa refusal, Rollex Australia has restructured and the nominated position continues to be vacant within the company. They are now looking to fill the position within their NSW service team. Currently they are attempting to cover this role with their Queensland staff, and it is claimed that this is limiting their ability to grow the business and service clients effectively.

20. On the material before it, the Tribunal is satisfied that the position that Rollex Australia is attempting to fill with the sponsorship of Mr Bugawan for the visa is a genuine vacancy and that he was a bona fide candidate for the position.

21. As to whether Mr Bugawan genuinely intends to perform the role, in his separate evidence he discussed his formal qualifications and relevant work experience with the Tribunal. He has provided evidence of relevant qualifications including a Diploma of Computer Systems Design and Programming, undergraduate student studies in Computer Engineering, and a Certificate II in Electrical Installation and Maintenance. Mr Bugawan told the Tribunal that after speaking with Mr Ng and others from Rollex Australia he was encouraged to learn that he could earn a salary seven to 10 times what he was being paid in the Philippines. Mr Bugawan told the Tribunal that he was becoming frustrated with the lack of opportunity at Target Display and from his discussions about the role believed that he could fill it with minimal additional training as Rollex Australia was working with the same type of food packaging and weigh labelling units. Mr Bugawan was able to talk to the Tribunal in detail about the role of Electronic Instrument Trades Worker (Special Class) that he was expecting to perform, and indicated that he believed the position would be a great opportunity to advance his career. He told the Tribunal that he understood that costs of living were also greater in Australia but considered that if he could support his family on his income in the Philippines he could genuinely do so in the role in Australia. Additionally, Mr Bugawan confirmed for the Tribunal that he understood that there may be considerable travel while undertaking the role and he had a realistic expectation of what this would entail. He had left Target Displays several years ago in anticipation of the visa approval. For some time he had been working for San Roque Supermarket Retail Systems, but told the Tribunal that the position offered by Rollex Australia still offered better opportunity and remuneration.

22. Having considered the personal circumstances of Mr Bugawan, his skills and experience, the Tribunal is satisfied that his intention to perform the occupation is genuine.

23. Consequently, for these reasons, the Tribunal is satisfied that the requirements of cl 482.212(2) of Schedule 2 to the Regulations are met. The appropriate course is to remit Mr Bugawan’s visa application to the Minister to consider the remaining criteria for the visa.

24. The second, third and fourth named visa applicants have sought the visa as members of the family unit of a person who satisfies the primary criteria for the visa. As the Tribunal has remitted the matter for reconsideration as to whether Mr Bugawan satisfies the remaining primary criteria for the visa, it is also appropriate that their applications be remitted for consideration in relation to the secondary visa criteria.

    DECISION

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

    ·cl 482.212(2) of Schedule 2 to the Regulations.

    Penelope Hunter
    Member