Australia National Wine Pty Ltd (Migration)

[2017] AATA 1576

Australia National Wine Pty Ltd (Migration) [2017] AATA 1576 (7 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Australia National Wine Pty Ltd

CASE NUMBER:  1620707

DIBP REFERENCE(S):  BCC2016/1260663

MEMBER:Hugh Sanderson

DATE:7 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 07 September 2017 at 12:50pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Temporary Residence Transition nomination stream – Position not full time – Importer Exporter – No evidence that applicant has earned any income from export or import activity – Financial statements provided do not indicate applicant can afford to employ nominee

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 24 November 2016 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 23 March 2016. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d) of the Regulations because the delegate was not satisfied that the nominee would be employed on a full-time basis in the position for at least two years.

   Background

5. The applicant lodged an application for an employer nomination approval for the position of Importer Exporter – ANZCO 133311 under the Temporary Residents Transition stream. The proposed base salary was $57,433 per year.

6. When considering the application, the delegate took into account the following issues:

   ·The applicant provided a number of financial documents indicating a net profit before income tax ending June 2016 of $28,959 and a net loss for the financial year ending June 2015 of $34,093;

   ·The organisational chart showed four field positions with one importer/exporter (being the nominee) and three sales assistants;

   ·The applicant had two sponsored persons on 457 visas, the nominee and also a web developer;

   ·The web developer’s position was not shown on the organisational chart and no information provided had been provided to the Department that this position had ceased;

   ·For the salaries for the two sponsored 457 visa holders the minimum income would amount to $110,474 in June 2016 giving a shortfall of $15,241 from the disclosed total income for that year of $95,233;

   ·This shortfall, did not include the wages for any other employed staff;

   ·The nominator had been running at a loss for the last two financial years and the claimed wage records do not stand up to scrutiny; and

   ·The figures disclosed a serious concern that if the nominee, once granted the permanent visa, would not be paid the nominated salary for the minimum of two years after the visa grant.

7. Based on these considerations, the delegate was not satisfied that the applicant had provided clear and transparent evidence that the nominee would be employed on a full-time basis in the position for at least two years and therefore did not meet the criteria in reg.5.19(3)(d) and refused the application.

   Information to the Tribunal

8. The Tribunal wrote to the applicant on 23 March 2017 requesting the applicant provide further information to indicate they met the requirements of reg.5.19(3). The applicant provided further information to the Tribunal including the following:

   ·Financial statement for the year ending 30 June 2016;

   ·PAYG payment summaries for the nominee for the year ending June 2013, June 2014 and June 2015;

   ·HESTA Superannuation Payments for the nominee, noting the last was made for the period ending September 2016 and made on 21 June 2017;

   ·Employment contract between Denistone Estate and the nominee;

   ·Documents purporting to be payslips for the nominee from December 2013 to December 2014 and March 2015 to March 2016 and three payslips for June 2017; and

   ·ANZ Bank Statement for the applicant for the period 6 January 2017 to 5 May 2017.

9. The financial statements of the applicant disclosed wages paid in 2016 of $95,233 and in 2015 of $118,454. The PAYG statements for the nominee for the year ending June 2015 show he earned $57,433.

10. The nominee left Australia on 14 December 2016. When the delegate made the decision refusing the nomination, the Department refused the application of the nominee. The nominee filed a review of that decision, however, the Tribunal found that it did not have jurisdiction as the applicant was not in the migration zone at the time the application was filed.

11. Mr Cong, the director of the applicant, appeared before the Tribunal on 20 July 2017 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent who attended the hearing.

12. Mr Cong said that the main business of the applicant was Lovin’ Lamb which was a takeaway shop selling barbecued lamb in Burwood. He said that as they only use the lamb shoulder cuts and his plan was to be able to buy the whole of the lamb and then export the rest of the carcass to China. He said that his plan was that he would get most of the profit from the export of the excess meat that was not used in his takeaway shop. He said that he was using his experience of the takeaway shop to help him to get to know the lamb industry. He said that he was developing this and, for example, had changed suppliers.

13. Mr Cong said that he was working out of the Lovin’ Lamb shop making sure it operated correctly. He said that this shop employed six full-time staff and four part-time staff. He said that the applicant had not been involved in any lamb export at this time as it was just a plan and the shop had only been open for six months. He said he had no previous experience of the meat industry.

14. Mr Cong said the main export was with red wine. He said that there was a website for Denistone Estate, but they did not have a satisfactory level of sales and online sales had failed. He said that there were staff in China who they used to sell their wine label, Denistone Estate. He said that they had a supplier who provided the wine and they sold it under their label, Denistone Estate. He said that the people in China are employed to develop contacts and sell wine to friends. This would be by the bottle or sometimes a case. He said that the applicant sold their own wine label, Denistone Estate, and used to sell Penfold’s Wines. He said they stopped selling Penfold’s Wines because they did not have the contract to export it. He said that they had five people in China selling their wine and two full time and four part-time people in Australia. He said that they sold the wine on “wei chat”. He said they offer free samples to their staff. He said that they had recently exported $100,000 of wine and also $90,000 of wine.

15. Mr Cong said the nominee had gone to China in 2017 to set up the office there. He said that they were selling wine to a government agency, but this had now stopped. The applicant said that the applicant was paid by bank transfer, but everybody else in the company was paid in cash. The Tribunal indicated that this was implausible, but the applicant said that this was just what they wanted.

16. The Tribunal noted the HESTA Superannuation statement indicated that no contributions had been made to the nominee’s account from 8 September 2016 until 21 June 2017, shortly after the applicant was invited to attend the hearing. Mr Cong said that this was just a mistake that he made. He acknowledged that no payments had been made over that period. He said that the payments only had to be made at the end of the financial year. The Tribunal noted that the statement indicated that the only payment made on 21 June 2017 was for the contribution due in September 2016 and did not amount to the total superannuation contributions that would have been due if the nominee had been working for the applicant. Mr Cong said that this was because they did not have an accountant in the business and it was just a mistake.

17. The applicant was given further time to provide further information to the Tribunal, including the returns for 2017, any licenses held by the applicant (in particular any wine export licenses) profit and loss statement and details of wages paid.

18. The applicant provided the following documents after the hearing:

    ·Submissions from the applicant’s agent;

    ·Receipt from Bonafide Certified Australia Education dated 16 December 2016; and

    ·Letter dated 10 July 2013 from “Yantai Sunny Trading Co., Ltd” (sic) stating that the applicant was the exclusive Australian Partner for the company.

19. The applicant did not provide any licenses or other documents discussed with the Tribunal and requested to be provided.

20. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

22. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis in the position for at least 2 years on terms that do not expressly preclude the possibility of an extension.

23. The application for an Employer Nomination is for the position of Importer or Exporter – ANZSCO 133311. This is described as follows:

    
    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.

24. There is little information which would indicate the applicant is involved in importing or exporting any goods or services. Despite claiming that this was originally their main business activity, there is little plausible information which would support this claim. The evidence indicates that the primary business activity of the applicant is a takeaway food restaurant located in Burwood, Lovin’ Lamb.

25. At the hearing, the applicant claimed that it was the intention of the business to develop into exporting lamb meat cuts not used in the restaurant. Apart from the claims of the applicant, there is no information which would indicate that there has been any development or implementation of any business operations for exporting lamb meat cuts to China. The business statements do not indicate any arrangement for the wholesale purchase and export sale of fresh lamb meat or any arrangements in China for the sale of the lamb. The business, Lovin’ Lamb, is of relatively small scale and there is no information which would indicate that any excess meat purchased for the restaurant would have any commercial viability for the export market.

26. There is relatively little information as to the activities of the Lovin’ Lamb restaurant. When asked for details as to the pay for the employees of Lovin’ Lamb the applicant stated that he did not have these as they were all paid in cash as that was what they want. The Tribunal does not find this explanation plausible. If the business were of a size that would generate the possibility of exporting lamb to China, the Tribunal does not accept that all employees would simply be paid in cash if they are being legally paid by the applicant as employees or that the applicant could not provide details of the pay of those employees.

27. The applicant claimed that the decision to start the business Lovin’ Lamb was so that he could get to know the lamb industry. There is nothing to indicate that the activities of Lovin’ Lamb have allowed the applicant to be in a position to become involved in the lamb export industry or that any of the activities of the applicant or their involvement with Lovin’ Lamb indicates that they have any plausible plans to export lamb. There is no evidence of the applicant obtaining or seeking any licenses to be involved in lamb export.

28. The Tribunal does not accept that the applicant has any viable or genuine plans to export lamb and is not satisfied the applicant has identified a need to employ the nominee as a paid employee to work in the nominated position for this purpose.

29. The original claim made by the applicant was that the role was required as they intended to export wine to China. Again, there is little plausible information that would support this claim.

30. A purchase contract and other documents provided in respect of the purchase and sale of wine was not supported by bank records that would indicate the wine identified was purchased by the applicant or sold to the claimed purchaser in China. The only document provided by the applicant after the hearing was a letter purported to be from Yantai Sunny Trading Co Ltd stating that the applicant was their exclusive Australian Partner. This letter is dated 10 July 2013 and there is no information which would indicate that there have been any purported sales at any time to this company. The Tribunal has great concern as to the legitimacy of the letter provided.

31. The Tribunal requested the applicant to provide any wine export licenses held by the applicant. Nothing has been provided to the Tribunal by the applicant which would indicate the applicant has ever held or applied for a wine export license. There is no information which would indicate the applicant has any authority to export wine from Australia or import wine to China.

32. The applicant provided documents to show that payments have been made to the nominee which are claimed to be for wages. The documents provided indicate that the only person who is paid in this manner is the applicant. This is despite the fact that the applicant employs several other individuals at Lovin’ Lamb. The applicant claimed that all his other employees only wanted to be paid in cash. The Tribunal does not find this explanation plausible.

33. The occupational flowchart provided by the applicant to the Department showed that apart from the director and the nominee, the applicant employs three sales assistants and was recruiting a further sales assistant. The restaurant employed two managers, two chefs, two kitchen hands, waiting staff and a delivery man. At the hearing the applicant said the business employed six full time and four part time staff. He said, excluding the nominee, there were another two full time and four part time staff in Australia for the wine sales business. Despite the Tribunal requesting information as to the income paid to these employees, no information was provided as to their income or payments made by the applicant to them.

34. It was claimed that the business has been paying, and would in the future pay, the nominee $57,433 per annum. The profit and loss statement for the applicant ending 30 June 2016 showed total wages paid of $95,233. If the nominee was paid the amount he has claimed, this would leave the applicant less than $38,000 to pay the rest of his staff, including two full-time managers and two full-time chefs.

35. The Tribunal does not accept based on the business activities of the applicant that the applicant has the capacity to pay the nominee the income as claimed.

36. As indicated above, little information has been provided of any current activity which would indicate the applicant is involved in exporting any goods or services to China. The records provided by the applicant indicate that the only activity the applicant is currently involved with is the takeaway restaurant, Lovin’ Lamb. No credible information has been provided to indicate that he is involved in the purchase of wine or lamb meat or any other goods for export. There is no information from the applicant’s financial records which would indicate that the applicant has been involved in the sale of any wine or lamb meat or any other goods in China. There is no plausible information which would indicate any income that has been earned by the applicant from any export or import activity. There is no plausible information which would indicate that the nominee has in the past or will for at least two years be employed on a full-time basis in the position of an importer or exporter. The financial statements provided do not indicate the applicant can afford to employ the nominee on the claimed income.

37. The Tribunal has taken into account all the information provided in support of the application both individually and cumulatively. The Tribunal is not satisfied based on the above information, including the financial circumstances and the business activities of the applicant, that the person nominated will be employed on a full-time basis in the position of an importer/exporter for at least two years.

38. Given the above findings, the requirement in r.5.19(3)(d) is not met.

39. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

40. The Tribunal affirms the decision under review to refuse the nomination.

    Hugh Sanderson
    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

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)    is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)     both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)    all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)     the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)    the terms and conditions of the person’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)     the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)    it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.