1416144 (Migration)

1416144 (Migration) [2016] AATA 3027 (12 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Best Importer Pty Ltd
CASE NUMBER:  1416144
DIBP REFERENCE(S):  BCC2014/945933
MEMBER:Alison Mercer
DATE:12 January 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 12 January 2016 at 1:38pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 September 2014 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Best Importer Pty Ltd, applied for approval on 8 April 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because the applicant did not meet the applicable training benchmark. The delegate was not satisfied that the applicant had demonstrated expenditure equivalent to 1% of its payroll on training for its Australian employees, as required. The delegate found that the applicant had provided evidence that its payroll figure was $126,750 and was thus required to demonstrate training expenditure of at least $1,267.50. Although a training invoice for $1,540 for stock control training had been provided, it was unclear to the delegate whether this was structured training and who had provided it.
The Tribunal received a review application on 26 September 2014, signed on behalf of the applicant by Ms Hui Han, a director of the company. It was accompanied by a copy of the delegate’s decision, a letter dated 23 September 2014 by Ms Han and supporting documents.
In her Ms Han indicated (in summary) that:
·she was the Managing Director of the applicant company. The company had nominated Mr Jie Chen for permanent residence on 8 April 2014;
·the delegate’s decision was unjustified as the training invoice dated 3 July 2014 provided to the Department provided details of the training organisation and the amount spent ($1,540, exceeding 1% of payroll) and the information provided was sufficient to show that training in stock management and control was provided to 3 staff members whose names were listed in the organisational chart provided to the Department as local employees;
·this fell within the description of acceptable training expenditure set out in written instrument IMMI 13/30, and did not require the applicant to provide quantifiable evidence of structured training (such as session plans or learning objectives) as the training was provided by a third party and was not internal training;
·the applicant had met Training Benchmark B at the time of the nomination application in April 2014 due to the above expenditure, but also spent a further $1,500 on training on 27 August 2014 provided by another external organisation to the applicant’s employees. Had the delegate raised her concerns with the applicant regarding its ability to meet Training Benchmark B, evidence of this could have been provided; and
·the applicant had been denied procedural fairness as the delegate had not raised any of her concerns with Ms Han prior to refusing to approve the nomination.
Ms Han provided a tax invoice to the applicant from Maramo Pty Ltd for training in stock control and management delivered on 3 July 2013 to Wei Gang Cheng, Jia Fang Zhou, Xiao Xiao Chen and Hui Pin Ren at a cost of $1,540, and a receipt for the applicant from Flinders International College dated 27 August 2014 for workplace training in building client relationships and business networks, delivered to Hui Pin Ren, Jia Fang Zhou and Xiao Xiao Chen, together with a Learner’s Guide issued by the latter organisation setting out the content of the training.
On 9 October 2014, the applicant appointed a registered migration agent, Mr John Leung Chien, as its representative and authorised recipient for correspondence for the purposes of the review.
On 15 October 2015, the Tribunal wrote to the applicant via its agent pursuant to s.359(2) of the Act to invite the applicant to provide information demonstrating that the business met all relevant criteria in r.5.19(4), including (but not limited to) the particular criterion the delegate found was not met. The Tribunal noted that any information provided should be current and in addition to anything already provided to the Department or Tribunal. It also emphasised that the criteria in r.5.19(4) were cumulative, and that the applicant was required to demonstrate that it met each in order for its nomination to be approved. A copy of r.5.19(4) and the applicable Training Benchmark written instrument were enclosed for reference.
On 28 October 2015, the Tribunal received an email submission and scanned documents from the applicant’s agent. In his submission, the agent stated (in summary):
·the applicant had provided earlier information about its genuine need for a fulltime wholesale professional. The structure of the business consisted of procurement, sales and warehouse management and Ms Han had to play multiple roles including bookkeeper, sales person and casual warehouse worker in order to keep labour costs down when the business was starting out. However, the business had now become very successful (its turnover having reached almost $1.5 million in the 2014 fiscal year) and it was now able to afford to hire a wholesale professional to assist in coordinating the operation of the wholesale business. The nominee would be able to generate more opportunities for sales, more efficiently source and procure products, more effectively communicate with suppliers and make wholesale operations more seamless from procurement, stock replenishing, incoming stock management to prioritising the despatch of order. The 2015 financial statements showed that the business continued to expand, underlining the ongoing genuine need for the nominated position. The applicant therefore met r.5.19(4)(a);
·the applicant was not an on-hire company. It was under the control of Ms Han and the nominated position was directly under control. The business was actively and lawfully operating in Australia and recent Business Activity Statement (BAS) were provided as well as its most recent financial statement and its bank statements. The applicant therefore met r.5.19(4)(b);
·r.5.19(4)(c) did not apply to the nominator as it was not a labour hire company;
·the contract of employment previously provided to the Department remained valid, and was for 2 years with the option of renewal. The applicant therefore met r.5.19(4)(d);
·there were no positions equivalent to the nominated position within the business, so the nominee’s terms and conditions were set by reference to the Storage Services and Wholesale Award 2010 and the relevant remuneration survey at the time of the application. This remained the case, and thus the terms and conditions should be regarded as no less favourable than the terms and conditions that would be offered to an Australian employee performing equivalent work in the same workplace and location, particularly as the salary of $39,982.80 was above the minimum Award salary for a wholesale professional at wholesale employee level 4 (the highest skill level). The salary offered also matched the upper middle range of income normally earned by a wholesale professional, according to the latest remuneration survey. Accordingly, r.5.19(4)(e) was met;
·there was no adverse information known to the agent about the company or a person associated with the nominator, and therefore it appeared that r.5.19(4)(f) was satisfied;
·the applicant had a satisfactory record of compliance with the laws of the Commonwealth and Victoria and thus r.5.19(4)(g) was met;
·the applicant had previously provided a statement of duties for the nominated position of Wholesale Coordinator, and these remained unchanged. The applicant therefore met r.5.19(4)(h)(i)(A);
·the financial statements for the 2015 fiscal year indicated that the total payroll expenditure (including wages, superannuation, contract fees paid to contract-based staff) were $198,169 in total. The applicant had provided a receipt and course guide relating to training provided to its Australian staff members by a registered training organisation and this expenditure exceeded 1% of payroll. The applicant therefore met r.5.19(4)(h)(i)(B); and
·accordingly, the applicant met r.5.19(4)(a) to (h) and its nomination should be approved.
The documents provided with the agent’s submission included the following:
·BAS lodged through the ATO Business Portal by the applicant for the period 1 July 2014 to 30 September 2015;
·the applicant’s business bank account statements for the period 19 July 2014 to 20 October 2015;
·the applicant’s financial statements for the 2014/15 financial year showing its sales income as $1,449,600.65, its gross profit as $352,658.70, and its net profit as $28,570;
·Payscale Australian remuneration reports for Sales Representative, Wholesale and Manufacturing, indicating the salary range for that occupation was $39,932 to $66,967, and for Assistant Manager, Wholesale, for which the range was $38,650 to $63,618;
·Learner Guide for unit Deliver and Monitor a Service to Customers, by Flinders International College, and receipt issued on 17 July 2015 for training provided to the applicant’s employees Jia Fang Zhou, Ping Han and Fan Wang at a cost of $2,000;
·copy of Pay Guide – Storage Services and Wholesale Award 2010 (Commonwealth) issued by the Fair Work Ombudsman; and
·organisational chart for the applicant showing Ms Han as Director, the proposed nominee Jie Chen as Wholesale Coordinator, 4 Australian citizen or permanent resident employees being Ping Han (Procurement Officer), Jia Fang Zhou (Sales Representative), Fan Wang (Warehouse and Logistics Manager) and Wei Zhong Sun (Warehouse Store Person) and 1 temporary visa holder, Jun Xiang You (Warehouse Store Person).
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and must identify a need for the nominator to employ a paid employee to work in the position under their direct control.
From the material on the Department file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. It is further satisfied that the applicant identified the need to employ a paid employee in the nominated position of Wholesale Coordinator (Australian and New Zealand Standard Classification of Occupation (ANZSCO) code Wholesaler 133312), a position under the nominator’s direct control.
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal is satisfied from the material on the Department’s file that the applicant business was incorporated in February 2013 and commenced trading in or about April 2013. Ms Han states that its main business is to distribute everyday supplies to retailers across Australia. Financial statements have been provided for the financial years 2012/13 and 2014/15 and Business Activity Statements (BAS) for the period 1 July 2014 to 30 September 2015, together with the bank account statements for the business for the period 19 July 2014 to 20 October 2015. The 2014/15 financial statements indicate that the business generated $1,1449,600 in sales income, made a gross profit of $362,658 and a net profit of $28,570. Its BAS and bank statements indicate that it continues to trade.
The Tribunal is satisfied from the above information that the applicant is directly, actively and lawfully operating a business in Australia; specifically, a wholesale supply business.
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal is satisfied from the evidence before it that the applicant’s business activities do not include labour hire to an unrelated business (or businesses).
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude extension of the employment.
The Tribunal is satisfied from the copy of the contract of employment dated 13 February 2014 provided to the Department that the nominee has been offered employment on a full-time basis for 2 years, with the possibility of renewal beyond this period. The Tribunal is satisfied that Ms Han, Managing Director of the applicant, has confirmed as at 28 October 2015 that this contract remained valid.
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied from the organisational chart most recently provided to the Tribunal that there is only one Wholesale Coordinator position within the applicant’s business (being the one offered to the nominee), and thus there are no Australian citizens or permanent residents performing equivalent work in the same workplace at the same location.
Nevertheless, the Tribunal must be satisfied that the terms and conditions offered to the nominee will be no less favourable than those that would be provided to an equivalent Australian employee, if there were one.
The Tribunal is satisfied that the contract of employment dated 13 February 2014 remains current and indicates that the nominee’s annual base salary will be $56,000 (net) and that his total remuneration package will be $61,180.
The Tribunal concurs with the Ms Han, the applicant’s Managing Director, that the appropriate Award for the nominated occupation is the Storage Services and Wholesale Award (Commonwealth) 2010. It is satisfied that under this Award, the minimum salary for a wholesale professional at employee level 4 (the highest employee level) is approximately $39,983 per year. The Tribunal is satisfied that the base salary and total remuneration package offered to the nominee exceed this.
Moreover, the Tribunal is satisfied that the base salary and total remuneration package also fall in the middle to high end of the range of salaries identified in the Payscale reports dated 19 September 2015 for the Australian occupations of Sales Representative (Wholesale and Manufacturing) ($39,932 - $66,967) and Assistant Manager, Wholesale ($38,650 - $63,618). The Tribunal accepts the Payscale website as being a reputable source of labour market remuneration survey information.
The Tribunal is satisfied that the terms and conditions pertaining to leave entitlements and termination provisions in the contract of employment offered to the nominee are in line with the National Employment Standards set out by Fair Work Australia.
Accordingly, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable to those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace in the same location, and thus finds that the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person ‘associated with’ the nominator; or it is reasonable to disregard any adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence in the Department’s records, or otherwise before the Tribunal, suggesting that the applicant does not have a satisfactory record of compliance with Commonwealth and Victorian laws relating to workplace relations.
Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 14/049), and certain specified training benchmarks will be met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

The Tribunal is satisfied that the position and nominating business are located in Australia, but not in regional Australia, and thus the applicant must satisfy the requirements of the first dot point above.
The Tribunal is satisfied that legislative instrument IMMI 14/049 is the applicable instrument, and that it includes the nominated occupation of Wholesaler (ANZSCO code 133312). The Tribunal notes that the tasks of this occupation as listed in ANZSCO are:
UNIT GROUP 1333 IMPORTERS, EXPORTERS AND WHOLESALERS

IMPORTERS, EXPORTERS AND WHOLESALERS plan, organise, direct, control and coordinate the operations of importing, exporting and wholesaling establishments.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oidentifying local and overseas business opportunities
odeveloping and implementing business plans, and marketing, operating, human resource, pricing and credit policies and procedures
odetermining the mix of products and services to be provided and negotiating conditions of trade
oliaising with local and overseas suppliers and distributors about orders and products
oresearching regulatory and statutory requirements affecting the importing, exporting, wholesaling and distribution of goods
omonitoring business performance and preparing estimates, financial statements and reports of operations
oappointing agents and distributors
oarranging the shipping of goods into and out of the country
ooverseeing the display and sale of merchandise and preparation of product information for customer service staff and customers
oimplementing after-sales service procedures

Occupations:
133311 Importer or Exporter
133312 Wholesaler

133311 IMPORTER OR EXPORTER

Plans, organises, directs, controls and coordinates the operations of an importing or exporting establishment.
Skill Level: 1

133312 WHOLESALER

Plans, organises, directs, controls and coordinates the operations of a wholesale trading establishment.
Skill Level: 1
The Tribunal has reviewed the position description provided by the applicant to the Department for the position of Wholesale Coordinator (folio 57, Department file), which provides the position is responsible for coordinating and operating the wholesaling business of the company, and that the tasks involved are as follows:
·identifying wholesale business opportunities across Australia;
·developing and implementing business plans, marketing strategies and pricing and credit policies;
·determining the mix of products to be provided;
·negotiating conditions of trade and credit terms with prospective clients and suppliers;
·reviewing sales figures and ensuring stock is replenished in time;
·liaising with local and overseas vendors and suppliers about orders and products;
·researching regulatory and statutory requirements affecting the importing, wholesaling and distribution of products;
·appointing agents and arranging shipping of goods into Australia;
·preparing product information and product codes for clients; and
·processing Return Manufacture Authorisation (RMA) requests.
The Tribunal is satisfied that these tasks essentially correspond with those listed in ANZSCO for the nominated occupation.
Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(i)(A) are met.
As at the time of the Tribunal’s consideration, the Training Benchmarks applicable to the applicant were set out in IMMI 13/030, and provide that the applicant must demonstrate:
·recent expenditure, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same business as the industry (Training Benchmark A); or
·recent expenditure, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees in the business (Training Benchmark B).
The applicant did not seek to satisfy Training Benchmark A, and no evidence has been provided to suggest that the applicant meets that Training Benchmark.
Rather, the applicant seeks to satisfy Training Benchmark B and relies on having spent at least 1% of the payroll of its business on the provision of training to employees in the business. The Tribunal is satisfied that this is the appropriate Benchmark for the applicant as it has been operating its business for more than 12 months at the time of the Tribunal’s consideration.
Most recently, the applicant provided the Tribunal with documentary evidence indicating that it paid $2,000 to Flinders International College for training on Deliver and Monitor a Service to Customers, which was delivered to its employees Jia Fang Zhou (Sales Representative), Ping Han (Procurement Officer) and Fan Wang (Warehouse and Logistics Manager) on 17 July 2015.
The Tribunal is satisfied from the applicant’s financial statements for the financial year 2014/15 that its total payroll expenditure (including wages, superannuation and fees paid to contractors) was $198,169, and that 1% of this amounts to $1,982 (rounded to the nearest dollar). The Tribunal is satisfied that the applicant therefore expended more than 1% of its payroll on training within the last 6 months, which the Tribunal considers to be ‘recent expenditure’ for these purposes. Moreover, the Tribunal is satisfied that this represents evidence of payment of an external provider to deliver training for its employees. The Tribunal is satisfied that these employees are either Australian citizens or permanent residents, on the basis of the organisational chart provided by the applicant. Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(B)(I) are met, and that the applicant therefore satisfies r.5.19(4)(h) as a whole.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2016] AATA 3027

12 January 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness