1509300 (Migration)

[2016] AATA 4791

1509300 (Migration) [2016] AATA 4791 (14 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  V R Thai Magazine Pty Ltd

CASE NUMBER:  1509300

DIBP REFERENCE(S):  BCC2014/3290898

MEMBER:R. C. Titterton

DATE:14 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 December 2016 at 4:56pm

CATCHWORDS
Migration – Direct Entry Nomination – Two years full time – Financial viability

LEGISLATION
Migration Regulations 1994, r 5.19

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 Immigration on 19 June 2015 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).

2. The applicant applied for approval on 2 December 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(d) of the Regulations because the delegate was not satisfied that the business of then applicant was financially viable.

5. The applicant’s managing director appeared before the Tribunal on 28 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Prajak Akaratham, the applicant’s graphic designer. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicant was represented in relation to the review by its registered migration agent.

7. 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

1. 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.

Evidence before the Tribunal

1. There was voluminous evidence before the Tribunal. Critically, before the Tribunal, but not before the delegate, were the financial statements of the applicant for the financial years ended 30 June 2015 and 2016. The delegate had noted that the financial statements for the year ended 30 June 2014 showed that the applicant made a gross profit from trading of approximately $38,000, and had made a loss before income tax for that year of a little over $19,000. A similar result had been achieved for the 2013 financial year. However, matters had changed substantially by the end of the 2016 financial year. The financial statements which had been prepared by a Sydney firm of accountants show that the income of the applicant for 2015 was approximately $106,000, which income reduced to a little over $94,000 for the 2016 year. Gross Profit from Trading for 2015 was a little over $80,000, and approximately $75,580 for 2016. Accordingly, the company had capacity to pay the graphic designers salary and superannuation contribution. The financial statements, being the Trading, Profit and Loss Statements for those years so that in fact the salary was paid and superannuation contributions made.

2. The other information before the Tribunal included the following: the application dated 2 December 2014; earlier financial statements of the applicant; Business Activity Statements of the applicant in the period 2012 to 2015 ; a Certificate of Registration of the applicant, issued by the Australian Securities and Investments Commission on 20 March 2010; a copy of the applicant’s current contract dated 21 November 2014; job advertisements for graphic designers in Sydney; an organisational chart showing that Mr Punnakris is the Editor-In-Chief of the applicant, and Mr Akaratham the Deputy Editor Graphic and Website Designer; receipts from TAFE NSW showing that the applicant had paid the 457 Temporary Business (Long Stay) Visa Training Benchmark A Contribution in 2013, 2014 and 2015; a job description for the Graphic Designer position dated 26 November 2012; references and job descriptions for Mr Akaratham when previously employed by Juteh Pty Ltd as a graphic designer; submissions prepared by Mr Punnakris dated 18 May 2015 in support of the nomination of the applicant of the Graphic Designer position; a bundle of purchase orders for the applicant; a spreadsheet showing the various customers who had advertised in the magazine in 2015; activity statements produced by the Australian Taxation Office in respect of the applicant showing payment of GST and PAYG income tax withheld.

3. The submissions of Mr Punnakris of 18 May 2015 briefly describe the essence of V R THAI MAGAZINE. He states V R THAI MAGAZINE is a free Thai magazine distributed across the Australian community. The magazine gives the community stories and information to inspire and encourage Thai people here in Australia.

4. The Tribunal also had the benefit of written submissions of Ms Hong, the applicant’s registered migration agent, dated 25 November 2016. The Tribunal notes that the submissions primarily address the issue of the applicant’s financial capacity. The Tribunal notes that it saw a copy of V R MAGAZINE. It was a professionally produced Thai language magazine, bearing a photograph of Mr Punnakris as Editor-In-Chief .

5. Finally, the Tribunal notes that had the benefit of oral evidence from Mr Punnakris and Mr Akarathum.  Mr Punnakris and Mr Akarathum each amplified the matters set out in this statements and responded credibly to the Tribunal’s queries.

6. The applicant’s contract shows that his current annual remuneration is $65,000+ superannuation of 10%. The term of the contract is for a period of four years.

7. The short statement of Mr Punnarkris dated 25 June 2013 describes the relationship between the applicant and Tanong Printing Pty Ltd (Tanong Printing) . the applicant publishes a magazine called V R THAI MAGAZINE. Tanong Printing has been operating for 19 years. In 2010, V R THAI MAGAZINE was established to operate to support Tanong Printing’s marketing department. Both companies are managed and owned by Mr Punnakris.  Mr Akaratha is the only full-time employee working for the applicant.

The application is compliant: r.5.19(4)(a)

1. 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, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

2. Information on the Department’s file indicates that the application for approval was made on the approved form and was accompanied by the fee prescribed. The Tribunal is also satisfied on the evidence before it that the application identified a need for the nominator to employ a paid employee to work in the position.

3. Accordingly, 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)

19.Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

1. Having considered the evidence before it, including the financial reports, business activity statements, ATO activity statements, purchase orders, customer spread sheet and the oral evidence of Mr Punnakris and Mr Akarathum, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

2. Accordingly, the requirement in r.5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

22.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.

1. The nominator’s business is not involved in labour hire activities.

2. Accordingly, the requirement in r.5.19(4)(c) does not apply.

Term of employment of the visa holder: r.5.19(4)(d)

25.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 the possibility of an extension.

1. The Tribunal has had regard to the terms and conditions of employment contained in the employment contract, which indicate that the nominee will be employed in the position on a full time basis for a period of 4 years which is renewable. The base salary indicated is $65,000 plus superannuation. The Tribunal notes the delegate’s concern regarding the nominator’s financial capacity to pay the nominated salary, however, the current financial reports before the Tribunal indicate that Gross Profit from Trading for 2015 was a little over $80,000, and approximately $75,580 for 2016. Accordingly, the company had capacity to pay the Graphic Designer’s salary and superannuation contribution. The financial statements, being the Trading, Profit and Loss Statements for those years so that in fact the salary was paid and superannuation contributions made.

2. On the material before it, the Tribunal is satisfied as to the nominator’s financial capacity and finds that the nominee will be employed in the position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

3. Accordingly, the requirement in r.5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

29.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.

1. The Tribunal has had regard to the employment contract, which details the terms and conditions of the nominee’s employment, and indicates that he will be paid a base salary of $65,000 plus superannuation. This is consistent with a number of advertisements for Graphic Designer included in the materials before the Tribunal. Having regard to the submissions and information before it, the Tribunal is satisfied on the evidence that the terms and conditions of employment are consistent with those being offered to a person performing a similar role. Accordingly, the Tribunal is satisfied that the terms and conditions applicable to the position will not be less favourable than those provided to an Australia citizen or permanent resident performing equivalent work.

2. Given the above, the Tribunal finds that the requirements of r.5.19(4)(e) are met

No adverse information known to Immigration: r.5.19(4)(f)

32.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 such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

1. There is nothing on the Department’s records to suggest that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

2. Accordingly the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

35.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.

1. The applicant has indicated that it has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff, and there is no evidence before the Tribunal to suggest otherwise.

2. Accordingly 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)

38.Regulation 5.19(4)(h) contains a number of alternative requirements. The relevant paragraph in this case is r.5.19(4)(h)(i), which requires the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, and certain specified training benchmarks will be met.

1. The evidence before Tribunal indicates that the tasks of the position will be performed in Australia. This was confirmed in the oral evidence of each of Mr Punnakris and Mr Akarathum.

2. The Tribunal has also considered the nature of the tasks to be performed in the position and whether it correspond to an occupation specified on the relevant instrument. The tasks of the position as set out in documents provided with the nomination largely reiterated the tasks in the ANZSCO for the occupation Graphic Designer (occupation 232411). At the hearing, the Tribunal had the opportunity to talk to Mr Akaratham about the actual duties of the position. The Tribunal was satisfied that Mr Akaratham’s educational background and work experience qualified him to be a graphic designer, and that he actually undertook the duties and responsibilities of a graphic designer for the applicant

3. Given the above, the Tribunal is satisfied that the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument. The Tribunal finds that r.5.19(4)(h)(i)(A) is therefore met.

4. The Tribunal has also considered the training requirements in r.5.19(4)(h)(i)(A) and the relevant instrument IMMI 13/030 which sets out the requirements relating to training.

5. The applicant commenced operation in 2010. The Tribunal accordingly finds that the nominator has operated for over 12 months and is therefore required to demonstrate it meets the requirements relating to training.

6. In determining the business’ payroll the Tribunal has had regard to its financial reports and activity statements, which indicate that in the 12 months to 30 June 2016 the applicant’s payroll, including superannuation, was $71,438.75. This is a very similar figure to the 2015 financial year. Accordingly, 1% is approximately $714.00.

7. The nominator claims to meet benchmark A, which requires recent expenditure by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business. The Tribunal finds that 2% of the business’ payroll is $1300. On the basis of the information provided by the applicant to the Tribunal (namely an email of 9 December 2016, provided after the hearing, which attached a letter of TAFE Queensland dated 9 December 2016, acknowledging a contribution by the applicant of $1,300) ) the Tribunal finds that the applicant meets training benchmark A, as specified in IMMI13/030, and accordingly meets r.5.19(4)(h)(i)(A). All

8. Given the above, the Tribunal finds that r.5.19(4)(h)(i) is met and the applicant accordingly meets the requirements of r.5.19(4)(h).

9. 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.

CONCLUSION

1. 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

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

R. C. Titterton
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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;

   (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; on and I can speak to

   (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).