Valeeva (Migration)

[2022] AATA 3357

Valeeva (Migration) [2022] AATA 3357 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elizaveta Valeeva

REPRESENTATIVE:  Mr Trent Robert Pickup (MARN: 0638435)

CASE NUMBER:  1918061

HOME AFFAIRS REFERENCE(S):          BCC2018/1282028

MEMBER:Stephen Witts

DATE:8 September 2022

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 08 September 2022 at 11:51am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of corporate general manager – nomination approved upon review – growth of multiple businesses – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.223, 187.233; r 1.13

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 17 March 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 corporate general manager ANZSCO code 111211.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because a delegate was not satisfied that the applicant is subject to an approved nomination.

6. The applicant appeared before the Tribunal on 8 September 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, M Cenfi and A M Cenfi.

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 case is whether the applicant is the subject of an approved nomination.

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

12. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record by the nominator. In this decision it was contended that the nominator had not demonstrated that the tasks to be performed by the applicant (nominee) corresponded to the tasks of a corporate general manager. It was asserted by the delegate that the occupation of corporate general manager must conform to the definition under the above code and consists of duties and responsibilities such as planning, organising, directing, controlling and reviewing day-to-day operations and major functions of a commercial, industrial, governmental or other organisation through departmental managers and subordinate executives.

13. It was further noted by the delegate that the nominator operates three shops at the same location which consists of a fish and chip shop, a gelato premises and another food shop. The delegate noted that there appeared to be only three employees in the business including the two owners and the nominee. It was stated by the delegate that this business consists of shops that do not have departmental managers or executives and cannot provide the scope for a corporate general manager and that the tasks undertaken seem more aligned to those of a retail supervisor position, in particular, that the shops owned by the nominator do not have departmental managers nor executives.

14. The Tribunal notes that the applicant has provided it with a submission dated 4 July 2022. In this submission it was stated that the applicant is a partnership, Marco and Anna Cenfi, and that it operates four businesses including MC Design Pty Ltd, La Barrita, Piccolo Gelato, and Piccolo Mates Pty Ltd. It was further stated that the business is operating and does have the financial capacity to support the nominee; also included was an organisation structure indicating that there is no equivalent Australian employee, an employment contract, a statement that that the position is located in a regional area, that there is a genuine need for the nominee to work in the business in this capacity, and other material.

15. The Tribunal notes that in the financial material provided it was stated that the total trading income for the partnership component of the business in 2021 financial year was approximately $300,000 and in 2020 it was approximately $280,000; and that wages for those financial years were approximately $100,000 per annum and that in 2021 there was a loss of approximately $150,000 and in 2020 a profit of approximately $100,000.

16. The Tribunal notes information was also provided regarding the individual businesses. La Barrita Pty Ltd had a total trading income in 2020 financial year of approximately $840,000 and in 2019 approximately $850,000; its wages were approximately $300,000 in those years, and it made a profit of approximately $20,000 in 2020 and a loss of $50,000 in 2019. In 2021 it had a total trading income of approximately $1.2 million, wages of approximately $490,000 and a profit of approximately $117,000.

17. The Tribunal notes that in regard to the MC Design Pty Ltd business, it had a total trading income in 2020 of approximately $465,000 and in 2019 it was approximately $547,000, its wages expenses were approximately $42,000 and $145,000 respectively and it made a loss in those years of approximately $50,000 and $20,000 respectively. In 2021 total trading income was approximately $1.3 million, its wages were approximately $76,000 and its profit was approximately $160,000.

18. The Tribunal notes that in regard to the Piccolo Mates Pty Ltd business its total trading income in 2020 was approximately $120,000 and that its wages were $64,000 and approximately $45,000 respectively. In 2021 its total trading income was approximately $100,000, its wages were approximately $72,000, and it made a loss of approximately $50,000.

19. The Tribunal notes that an organisation chart was provided indicating that in the gelato business there were eight casual employees as of June 2022, in the Piccolo Mates business there were three casual employees, two of which were on student visas, in the La Barrita business there were 18 casual employees all of which were Australian citizens, and in the MC Design business there were two employees, being the managing director Mr Marco Cenfi and the nominee.

20. The Tribunal notes that there is an employment agreement for the nominee. The remuneration was stated as being $79,032.70 and that the position commenced on 4 June 2018. This employment agreement was signed by the managing director and the nominee on 2 June 2018.

21. The Tribunal notes that a list of duties and responsibilities was provided, as was pay scale information indicating that the average general manager salary in Australia as of 30 June 2022 was $115,849 per annum.

22. The Tribunal notes a submission was provided by the nominator stating the role of the nominee has become an integral one within the business, that the business continues to grow, and that formerly the business was operated solely by the two partners but that in 2018 they identified a need to establish a role to lead and support the business objectives of each individual business. It was stated that after advertising the role and reviewing applicants the nominee was the successful candidate as she had the best qualifications for it.

23. It was further stated that the principal owner in the business, Mr Marco Cenfi, is active across the different entities as a manager but that his predominant focus is the design work that he is involved in, in architecture design, and that he is involved in large-scale fit out projects and other construction design. It was stated that the nominee’s experience in hospitality businesses is useful in resolving administrative matters that allows the principal owner to concentrate on design works. It was further stated that the group was able to continue operations and minimise employment impacts during a pandemic and this is due to the strength of the business’s management team including the nominee.

24. The Tribunal notes that prior to the hearing witness statements were provided including one from one of the directors, Anna Cenfi, stating that she and her husband are unable to cover the role themselves and that they are busy looking after their three young children and that her husband’s time is spent completing design work in the design business as above; one from the other director, Marco Cenfi, stating that there is no Australian equivalent employee working at the business and that the salary was confirmed via market salary research, and that the partnership has not been monitored by the Department; and one from the nominee stating that at the time of application she was 22 years old and had competent English at the time of the application and that she possessed the relevant qualifications for the nominated occupation.

25. The Tribunal also notes that provided prior to the hearing were birth certificates for the three children of the nominator, some entity bank account statements it was stated indicates the nominee’s access, and some material regarding the nominator’s design and construction business.

26. The Tribunal notes that the descriptor for the role of corporate general manager in accordance with ANZSCO code 111211 describes such a role as a person who plans, organises, directs, controls and reviews the day-to-day operations and major functions of a commercial, industrial, governmental or other organisation through departmental managers and subordinate executives, and the tasks of such a role are:

    ·“Planning policy, and setting standards and objectives for organisations

    ·Providing day-to-day direction and management of organisations, and directing and endorsing policy to fulfil objectives, achieve specific goals, and maximise profit and efficiency

    ·Assessing changing situations and responding accordingly by issuing commands and directives to subordinate staff

    ·Consulting with immediate subordinates and departmental heads on matters such as methods of operation, equipment requirements, finance, sales and human resources

    ·Authorising the funding of major policy implementation programs

    ·Representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility

    ·Preparing, or arranging for the preparation of, reports, budgets and forecasts, and presenting them to governing bodies

    ·Selecting and managing the performance of senior staff

    ·May undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations”

27. At the hearing the Tribunal had a discussion with the applicants about their application.

28. The nominator, Mr Marco Cenfi, stated that he first employed the nominee as a front of staff employee in a restaurant he owned in 2015 and that she worked part-time for him for a year or so before assisting him starting up a new restaurant which he currently owns and is still trading, La Barrita, where the nominee continued to work part-time before becoming the restaurant manager and assisting in the business generally. He stated that the nominee showed great promise in the business and that in 2018 he appointed her as his general manager managing the four businesses that he owns. He stated that he did advertise at the time but could not find any quality candidates to manage his businesses and so decided to appoint the nominee.

29. The Tribunal had a detailed discussion with the nominator regarding the nature of his four businesses and the role that the nominee takes in managing those businesses. In particular, the nominator provided evidence in regard to the size and nature of his current design and contract construction business and how the nominee is actively involved in the day-to-day running of the business including project management and contractor management, as well as continuing to overview the other three retail businesses emphasising the financial and human resource overview and management on a day-to-day basis of those businesses.

30. The nominee stated that she first came to Australia as a student in 2014 and achieved a bachelor level qualification in business in 2017. She stated that she then went on a postgraduate visa for two years before making this current application. The nominee provided evidence in regard to the nature of the work that she has been undertaking since 2018 including the management of the three retail businesses in terms of employment, financial management, and other aspects of running the business and also her activities in the design business managed by the nominator and her day-to-day responsibility for overseeing the projects mainly based in Sydney, overseeing sales figures, managing the spending, and managing the contractors and clients.

31. The Tribunal considered this matter very carefully noting that the nominator and the nominee have stated that the multiple businesses being managed by the nominee are of a smaller scale that would normally be associated with the role of a corporate general manager. However evidence was provided that the nominee does carry out the functions of a general manager of these businesses in all the aspects including selecting and managing the performance of the senior staff running those businesses as well as the staff in those businesses, that she is responsible for all of the accounting, sales and other specialist operations of these businesses, that she does prepare budgets and forecasts for the partners in all these businesses, and that she does manage immediate subordinates across these businesses and gets involved in finance, sales and human resource functions.

32. The Tribunal therefore made a finding that on that basis that the nominee was carrying out the functions of a corporate general manager in accordance with the above ANZSCO code.

33. On that basis the Tribunal finds that the applicant was carrying out duties and responsibilities of a corporate general manager and therefore is the subject of an approved nomination.

    Nomination of a position

34. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

35. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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.

36. The Tribunal finds that the applicant did meet all the above requirements.

37. Therefore, cl 187.233 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.

    decision

39. 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.