Sarifdeen (Migration)

[2022] AATA 3298

Sarifdeen (Migration) [2022] AATA 3298 (10 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raziudeen Sarifdeen
Mrs Rihaani Fathima Mohamed Rezar Rafeek

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1917551

HOME AFFAIRS REFERENCE(S):          BCC2018/986390

MEMBER:Warren Stooke AM

DATE:10 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223 of Schedule 2 to the Regulations;

·cl 186.232 of Schedule 2 to the Regulations; and

·cl 186.311 of Schedule 2 to the Regulations.

Statement made on 10 August 2022 at 5:07pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Retail Buyer – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.232, 186.311

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 19 June 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 March 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Retail Buyer – ANZSCO Code: 639211.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor for the position of Retail Buyer – ANZSCO Code: 639211.

6. The applicants appeared before the Tribunal on 19 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Islam Kazi Muzharul, the nominating sponsor.

7. The applicant provided evidence that he understood the visa nominated position of Retail Buyer was refused by the delegate since the employer did not have a profit and loss statement and training benchmarks, as supporting evidence.

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

9. The applicant was represented in relation to the review by a registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Retail Buyer – ANZSCO Code: 639211.

12. The applicant was granted a Bridging Visa C on 26 March 2018 that had no conditions.

13. The applicant was granted a Temporary Work (Skilled) 457 Visa on 2 October 2018 that was valid until 2 October 2020 and subject to condition 8105 to maintain health insurance.

14. An Australian Federal Police check was provided to the Department dated 28 February 2017.

15. The applicant provided evidence of a skills assessment with VETASSESS dated 20 Julu 2017 for the occupation of Retail Buyer – ANZSCO Code: 639211.

16. The applicant provided evidence that he had completed the following courses of study:

    a.Certificate III in Commercial Cookery at Chelsea International College and awarded on 21 December 2009;

    b.Certificate IV in Business at the Southern Cross Education Institute and issued on 20 October 2010;

    c.Diploma of Business at the Southern Cross Education Institute and issued on 22 February 2011.

17. The applicant provided evidence that he completed an IELTS English language test on 24 April 2017 with an overall score of 6.5.

18. The applicant stated that he commenced employment with Kazi on a 457 visa on 16 February 2017. The applicant’s current salary was stated as $60,000 per annum.

19. The applicant stated that his duties included the following tasks and responsibilities:

    a.Monitor customer survey data;

    b.Negotiate purchases with suppliers;

    c.Long term planning and sales promotion;

    d.Stock taking;

    e.Visit suppliers and negotiate the price;

    f.Market strategies and working on long term plans for customer and seasonal budgets.

    Evidence of Islam Kazi Muzharul (the nominating sponsor)

20. The nominating sponsor provided evidence that the business was registered with ASIC on 22 May 2000 and assigned an ABN: 94 224 569 258 and registered for GST 1 July 2000.

21. The nominating sponsor provided evidence of a lease agreement with the Central West Shopping Centre Braybook dated 4 August 2016.

22. The nominating sponsor provided evidence that he came to Australia in 1990 and opened a small clothing business and market shop in Frankston and subsequently Clayton, with his brother.

23. The nominating sponsor stated that in 1990 he also opened a shop in Geelong and in 2001 a shop in Werribee Plaza, with his four younger brothers.

24. The nominating sponsor stated that he commenced a subcontract franchise in shopping centres, but in 2008, due to a loss of business, he retained one shop and one store.

25. In 2014, the nominating sponsor stated he opened a shop in Braybrook shopping centre and Deerpark with buying from overseas. In this same year, the nominating sponsor stated that he needed a professional buyer with overseas buying experience and he advertised the position on Gumtree.

26. The nominating sponsor provided evidence that the salary offered in 2017 to the applicant was $54,000 and is $60,000 currently for a 37.5 hours per week.

27. The nominating sponsor provided a subsequent contract of employment with the applicant, dated 9 February 2022, for a fixed term of 2 years to commence upon the grant of a 186 visa for the position of Retail Buyer based at Central West Shopping Centre Braybrook based upon a salary of $60,000 plus 10 per cent superannuation. The contract was signed on 18 February 2022.

28. The nominating sponsor stated that the applicant was employed by the business on 9 October 2017.

29. The nominating sponsor stated that the business is open 7 days per week and that he has 7 employees with casuals and part time employees paid $22.00 per hour, where the underpinning award is the Retail General Award.

30. The nominating sponsor provided evidence that employees are provided with a Fair Work Information Statement at the time of employment.

31. The nominating sponsor provided an organisation chart that included the owner and the nominee as a Retail Buyer.

32. The nominating sponsor submitted evidence that the nominee undertakes the following duties in the nominated occupation of Retail Buyer – ANZSCO Code: 639211.

    • Monitoring sales data and stock levels, and studying trade, manufacturers and market information to keep informed of changing market conditions

    • Negotiating purchase, promotion and supply arrangements with suppliers

    • Designing and implementing pricing, marketing, promotional and display strategies

    • Liaising with management on long-term planning and sales promotions

    • Anticipating consumer trends and determining quantity, style and quality of goods to be purchase.

    Nomination of a position

33. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

34. In addition, this criterion also requires that:

    ·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.

35. Following the hearing the Tribunal has determined in Case Matter 1911784 pertaining to Islam Kazi Muzharul Pty Ltd that the position of Retail Buyer – ANZSCO: 639211 is approved through a substituted decision of the Tribunall.

36. Further, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

37. Therefore, cl.186.223 is met.

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

39. On the basis that the primary applicant has met the criteria pertaining to cl.186.223, it follows that the secondary applicant is a member of the family unit that has met the criteria for the grant of a 186 visa and thereby has met cl.186.311.

    DECISION

40. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223 of Schedule 2 to the Regulations;

    ·cl 186.232 of Schedule 2 to the Regulations; and

    ·cl 186.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member

    
    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.