AUSUNION PTY LTD (Migration)

AUSUNION PTY LTD (Migration) [2021] AATA 4872 (5 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AUSUNION PTY LTD
CASE NUMBER:  1818103
HOME AFFAIRS REFERENCE(S):          BCC2017/2101227
MEMBER:Susan Reece Jones
DATE:5 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 November 2021 at 1:58pm

CATCHWORDS
MIGRATION–nomination – exporter – Temporary Residence Transition nomination stream – business was able to financially support the position – financial capacity to employ the nominee full-time for a minimum of 2 years – standard business sponsorship (SBS) was approved – applicant lawfully operating a business in Australia–decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR, 359
Migration Regulations 1994, r 5.19

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 Home Affairs on 1 June 2018 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 applied for approval on 14 June 2017. The requirements for the approval of the nomination of a position Importer or Exporter (ANZSCO 133311) in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c) of the Regulations because the Department found that in the period of three years immediately before this nomination was lodged (the period between June 2014 and June 2017), the identified holder of the Subclass 457 (Business (Long Stay)) had not been employed in the position in respect of which the person held the Subclass 457 visa for a total period of at least two years and consequently, the applicant did not meet subregulation 5.19(3)(c)(i)(A)(II).
The Tribunal received a review application on 20 June 2018. It was signed on behalf of the applicant by Mr Guang Yang, the applicant’s director. The review application was accompanied by a copy of the delegate’s decision.
On 9 December 2020, the Tribunal wrote to the applicant’s representative Chaofeng (Paul) Guan of ANZIA Immigration Lawyers under s359(2) of the Migration Act 1994 (the Act) inviting them to provide the Tribunal with further information in support of this application.
In response to the Tribunal’s s359(2) request, on 14 December 2020, the applicant provided the following documents:
- ASIC Current and Historical extract dated 14 December 2020
- Business name extract for Sydney Gift World dated 14 December 2020
- Business name registration dated 29 January 2017
On 23 December 2020, the applicant provided:
- Financial reports for 2018, 2019
- BAS for the periods of June 2018 to June 2019; July to Sep 2018; Oct to Dec 2018; Jan to March 2019; April to June 2019; July to Sep 2019; Oct to Dec 2019; Jan to Mar 2020; and April to June 2020
- Nominee PAYG: 2019, 2020
On 6 January 2021, the applicant submitted the following to the Tribunal:
·Financial statements: 2019, 2020
·Employees list
The Tribunal exercised its discretion to hold a hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
On behalf of the applicant, its director, Mr Guang Yang (who is also the husband of the nominee), appeared before the Tribunal on 26 March 2021 to give evidence and present arguments.
The Tribunal also received oral evidence from Ms Ziyi Liu, the nominee.
The applicant was represented in relation to the review by its registered migration agent, Mr Chaofeng (Paul) Guan of ANZIA Immigration Lawyers.
The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese and English languages.
Following the hearing, on 19, 20 and 21 April 2021, the applicant provided further evidence in support of its application namely,
- Annual Company Tax returns for 2017, 2018, 2019
- Financial reports for FY 2017, 2018, 2019, 2020
- Submission from Representative
·Invoice from Suppliers
·Orders from customers
- Lease (unsigned): Ground floor,54 Dixon Street, Haymarket, Sydney NSW for 5 years commencing 1 April 2016 to 31 March 2021 (rental of $215,000)
·Shipping records (AuExpress Global and others)
·Applicant ATO Notice of Assessment from 2017 to 2019, 2020 (pending)
·Nominee superannuation account statements
·Property rental schedule for 6 Schiffke Court, Caboolture Qld 4510 with details for rental income earned from 1 December 2015, 2016, 2017
- Broadcast / promotion for customers by nominee
- Photographs of retail stores in Sydney
- Photographs of customer stores (GroupGo in China: Zhengzhou, Henan Province; Wuhan, Hubei Province)
- Nominee PAYG
- Nominee CBA Superannuation statements
The applicant’s representative submitted the following to the Tribunal:
Ausunion Pty Ltd, also known as Sydney City World operates a retail shop located at 54 Dixon Street Haymarket 2000 NSW mainly oriented for Chinese tourists to Australia and engage in exporting of Australian goods to China.
In order to develop our export business, we make our retail shop not only as a point of selling goods but as a point where we can establish our relationship with the potential export
customers, so that we can continue to provide products to them when they are back to China
or to assist them to distribute or retail our products in China. Our main purpose is to expand
our export customers and to have more goods exported to China. The business model is
effective. We now have 6000 to 7000 customers.
From 2018-2019 we experienced steady increase from three million to six million, where 30
percent of sales was local sales and 70 percent was export sales. Our sales revenue achieved in FY 2019 was AUD6,539, 995 in FY2019. Assisted by our established business model and affected by Covid-19 pandemic and border closure, there were no visitors to our retail shop we still kept up sales of AUD 3, 695, 584 even in FY2020 and we are still able to continue with our business now.
Our main export products are Blackmore Swisse Ostelin healthy products, A2 Aptamil baby
formula, skincare products like eaoron, lanolin beauty, Kelly Windsor sheep shin products,
Alpaca Quilt. And Australian UGG.
In order to assist our customers to distribute and retail our products in China, our export
manager Ziyi Liu would make a business trip to China one or two times a year before Covid-19 broke up. These customers were located in Zhengzhou, the capital city of Henan Province, Wuhan, the capital city of Hubei, and they either operate a retail shop or distribution centre.
Below are some of our regular suppliers in Australia:
As on 03/2020 affected by Covid 19 there were no tourists coming to our retail shop, we
commenced Live Broadcast sales to attract overseas customers.
On 19 July 2021, the Tribunal wrote to the applicant requesting the
·The most recent (lodged) BAS for 2021; and
·the Notice of Assessments for the Nominee for 2015 and 2016.
On 26 July 2021, the applicant provided the Tribunal with the evidence requested at paragraph 17.
On 18 August 2021, the Tribunal wrote to the applicant requesting the applicant provide further evidence including ATO Tax returns, and nominee Notice of Assessments for years ending 2019, 2020 and 2021 and the nominee’s 2021 ATO Tax return, and the applicant’s current property lease.
On 24 August 2021, the applicant provided the Tribunal with its ATO Tax Returns for 2019 and 2020 but not 2021 as it was not yet finalised according to the applicant representative. The applicant’s representative also stated in an email to the Tribunal of the same date, that the applicant’s lease came to an end on 31 March 2021 and that as the applicant has been affected by COVID-19, the applicant has chosen “not to renew the visa for the moment to avoid unnecessary costs”.
On 13 September 2021, the Tribunal wrote to the applicant and requested the applicant provide the following information:
·     Signed and lodged ATO Company Income Tax Returns for years ending 2016, 2017 and 2021
·     Financial Report for the year ending 2021
·     Evidence that the business is still operating/trading, and
·     Business Bank Statements for July and August 2021
Having reviewed the evidence provided by the applicant on 13 September 2021 (as stated above), the Tribunal invited the applicant and nominee to a further hearing. On 8 October 2021, the Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
On behalf of the applicant, its director, Mr Guang Yang (husband of the nominee), appeared before the Tribunal on 8 October 2021 to give evidence and present arguments.
The Tribunal also received oral evidence from Ms Ziyi Liu, the nominee.
The applicant was again represented at the hearing by its registered migration agent, Mr Chaofeng (Paul) Guan of ANZIA Immigration Lawyers.
The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese and English languages, although the Tribunal notes that the applicant director, Mr Yang and the nominee speak good English.
At the hearing on 8 October 2021, the Tribunal requested Mr Yang provide the Tribunal with further details as to the applicant’s business activities given:
·     the applicant terminated its retail lease in Haymarket in Sydney in April 2021 and did not disclose this to the Tribunal at the initial hearing
·     the applicant purported to lodge its 2021 Financial Statement with the ATO by mail as opposed to by electronic lodgement via the applicant accountant which is standard business practice
·     the applicant’s business bank accounts show large deposits of cash and similar large payments to unidentified back accounts, and
·     the applicant’s Financial Statements for the year ending 2021 which show income for the applicant in 2021 was $18,652,371 and prior year 2020 income was $3,695,584.
Mr Yang advised the Tribunal that:
- The applicant’s retail business relied on Chinese tourists who due to COVID-19 restrictions, were not permitted to come to visit Australia
- The applicant had paid the lease for the Haymarket retail store throughout 2020, although the applicant was subject to COVID-19 trading restrictions and as a result, had few customers and the applicant had to try to reinvent its business
- When the lease completed at end March 2021, the applicant did not renew the lease and transferred the applicant’s business operations to Mr Yang’s home and now operates its business entirely using an e-commerce platform
- The applicant turned its focus to wholesale trading, shipping directly to clients sourced by the nominee in China, developed a new order form, promotes its communications via specialised WeChat sites, each of which have 5,000 customers
- The applicant’s Financial Statements were not lodged electronically by the applicant’s Accountant because Mr Yang had had an ‘argument’ with the accounting firm because it was slow to respond to the applicant’s request
- Mr Yang explained that the applicant’s Chinese customers make payments to the applicant via money transfer to Australian dollars and the applicant collects the payment in cash, deposits the payments to the applicant bank account and then makes payments to the suppliers
- A large portion of the applicant’s export business is in powdered milk products (a2) which is sold and shipped to its customers in China at very low margin.
The Tribunal reminded Mr Yang that the applicant should be able to provide documentary evidence in support of its application and that verification of the applicant’s business system and financial performance (including the significant bank transfers and matching payments to wholesale suppliers), was required. The Tribunal explained again to applicant that the Tribunal is reliant on the applicant’s evidence in order to be satisfied that the applicant meets the requirements set out in r5.19(3).
The Tribunal provided the applicant until 22 October 2021 to submit any further evidence in support of the application.
On 22 October 2021, the applicant submitted the following documents:
- Multiple invoices from suppliers:
§ A2 baby formula and milk products
§ Penfold Shiraz wine
§ Activity Statement from Ba Nana Global Trading of Point Cook, Melbourne 2019 – 2020 showing invoices (numbers and $ amounts) and corresponding payments from applicant
- Multiple invoices to customers:
- BAS July – September 2021
- Nominee superannuation records (Australian Super) to July 2021
- ATO Activity Account dated 22 October 2021 (showing overdue sum $1,212)
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 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.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(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 relevant person and occupation.
From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Department’s records indicate that the applicant was approved as a standard business sponsor from 14 January 2014 to 14 January 2017; 13 August 2014 to 13 August 2017 and most recently, 15 January 2021 to 15 January 2026.
The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Ms Ziyi Liu, and nominated her for a subclass 457 visa. The Tribunal is further satisfied that the company is not operating a business overseas in its most recent sponsorship approval.
In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence of its ASIC Current and Historical extract (dated 14 December 2020), Business name extract for Sydney Gift World (dated 14 December 2020), Business name registration, Financial Statements for 2018, 2019 and 2020, and BAS Statements (refer paragraph 14 above), which show that it is actively trading.
The Tribunal is satisfied based on the material before it, including the applicant’s ASIC records, BAS other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
The Department noted in its decision that subregulation 5.19(3)(c)(i)(A)(II) requires that the nominee has been employed in the position in respect of which the nominee holds the Subclass 457 visa for a total period of at least two years. The delegate found that the applicant did not provide the Department with evidence of probative value in relation to the nominee’s employment. The delegate further noted that:
- The relevant contract of employment does not establish that the nominee was employed for at least two years;
- While the nominee’s PAYG payment summary for the year ending 30/06/2016 suggests that the nominee may have been employed by the nominator during the period from July 2015 to June 2016, I consider that the nominee was not subsequently employed during the time that the nominator did not conduct any business from July 2016 and March 2017 and in relation to which period the nominator did not provide the nominee’s PAYG payment summary for the year ending 30/06/2017, so deducting this period she was not employed by the nominator between July 2016 and March 2017 or a period of eight months, the most the nominee may have been employed by the nominator would have been one year and nine months up until the nomination was lodged on 14/06/2017 –short of the required two years of employment in the nominated position.
Therefore, the delegate concluded that, in the period of three years immediately before this nomination was lodged (that is in the period between June 2014 and June 2017), the nominee had not been employed in the position in respect of which she held her Subclass 457 visa for a total period of at least two years. Consequently, the Department found that the applicant did not meet subregulation 5.19(3)(c)(i)(A)(II).
The applicant’s director told the Tribunal at hearing that the applicant had conducted business from July 2016 to March 2017, and that the nominee had, contrary to the Department’s decision, worked for the applicant during that time. In support, the applicant provided the Tribunal with the nominee’s PAYG and ATO Notices of Assessment (all of which show that the payer name for the nominee is the applicant):

Year Ending PAYG $ Estimated superannuation 9.5%

2015 22,847 * $2,170

2016 56,079 $5,327

2017 56,079 $5,327

2018 55,039 $5,228

2019 54,582 $5,185

2020 54,002 $5,130 #

2021 56,973 $5,412%
*commenced January 2015
per Nominee Australian Super Statement:
§# $5,296
§%$5,129

The Tribunal notes that the nominee’s Notice of Assessment for 2015 was $22,182, and 2016 was $53,080. The nominee’s PAYG payment summary for the year ending June 2017 was also provided to the Tribunal and it shows that the nominee was paid by the applicant.
In addition, the applicant also provided the most recent superannuation statements of the nominee (as at end July 2021), which show as noted above, that the applicant has paid the nominee’s superannuation (to within an acceptable range) of its statutory obligations. The Tribunal was also provided with the nominee’s (CBA) superannuation statements which show the contributions as being from the applicant. As at 30 June 2015, the applicant had a balance of $1,673 in superannuation contributions. Her superannuation balances for subsequent years were:
·2016: $5,690
·2017: $10,706
·2018: $16,187
·2019: $21,910.
The Tribunal notes that the superannuation estimates noted at paragraph 46, align within an acceptable range with the balances stated on the nominee’s CBA superannuation statements.
The Tribunal was provided with the applicant’s Financial Statements. The submissions from the applicant show as follows, noting specifically, that the applicant was trading in 2016 and 2017:

$ 2016* 2017* 2018 2019 2020 2021

Total income
1,333,547 1,309,337 3,550,519 6,539,952 3,695,584 18,652,371

Wages 140,722 78,079 70,939 112,724 78,090 56,973

Director fees 20,000 20,000 20,000 20,000 nil

Superannuation 14,651 8,178 6,426 8,808 7,419 5,412

Total assets
571,630 635,724 605,227 533,839

Total liabilities
551,801 607,024 593,542 513,671
*Financial Statements for 2017 (also showing 2016); dated 15 January 2019.

$	2016*	2017*	2018	2019	2020	2021
Total income	1,333,547	1,309,337	3,550,519	6,539,952	3,695,584	18,652,371
Wages	140,722	78,079	70,939	112,724	78,090	56,973
Director fees	20,000	20,000	20,000	20,000	nil
Superannuation	14,651	8,178	6,426	8,808	7,419	5,412
Total assets	571,630	635,724	605,227	533,839
Total liabilities	551,801	607,024	593,542	513,671

The Financial Statements, PAYG summaries and ATO assessments, and superannuation contributions from the applicant from 2016 to 2021 as set out above, indicate that the nominee has been employed for 2 out of the relevant 3 years. The Tribunal notes too that the applicant’s total wages bill for the years listed, appear to incorporate what the nominee’s PAYG summary statements and ATO assessments indicate what the nominee has been paid.
The Tribunal is therefore satisfied on an assessment of the additional evidence provided that:
· the nomination was made on 14 June 2017 for the position of Importer or Exporter ANZSCO code 133311;
· the relevant 3-year period is therefore 14 June 2014 to 14 June 2017;

· the nominee was initially employed by the applicant on 14 January 2015 while the holder of a 457 visa;

· the nominee applied for a subclass 457 visa on 6 August 2014 on the basis of her nomination by the applicant and was granted a Bridging visa on that date;
· she was granted a subclass 457 visa on 14 January 2015, which was valid until 14 January 2019; and
she had therefore worked for the applicant in the nominated position for approximately 2.5 years prior to the nomination, and for years 2.5 in the 3-year period immediately prior to the nomination application being lodged. The Tribunal notes that in reaching this conclusion, it was provided with considerably more documentary evidence of the nominee’s employment than the delegate was. It is satisfied that this documentary evidence supports the claimed employment of the nominee in the 3 years immediately preceding the lodgment of the nomination application.

Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
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 for at least 2 years on terms that do not expressly preclude the possibility of an extension.
At the hearing, the applicant’s director, Mr Guang Yang, provided evidence as to the activities and financial status of the applicant’s business. In summary, he told the Tribunal that the applicant:
·     operates its business from a store in the Haymarket / Chinatown area of Sydney (trading 7 days a week from 11am to 9pm)
·     sells its products sourced in Australia through the store or more recently, online – particularly due to COVID-19 restricting customers shopping in person
·     provides the sourced Australian products to various stores in China
·     until COVID-19, relied heavily on Chinese tourists to Sydney
·     has 6,000 - 7,000 customers
·     now promotes its business primarily on WeChat due to COVID-19 and having had to close its store
·     focuses on targeting Chinese customers at festival times (key buying period)
·     had its bank account hacked
·     communicates with Chinese suppliers and retailers via video events
·     exports to China milk powder, supplements (Blackmores), skincare products, sheepskins, UGG Boots
·     imports phone cases and chargers and other phone accessories
The list of the employees provided to the Tribunal notes 6 employees: the applicant director Mr Yang, the nominee (his wife) and four other employees. Mr Yang told the Tribunal at hearing that due to COVID-19, the applicant now only employs the director and the nominee.
The Tribunal’s analysis of the applicant’s financial evidence shows the applicant in the calendar year 2020, had sales of $15,814,570 (refer paragraphs 33 and 34 above), which was significantly higher than the previous year and appears to be due to the sales recorded in July – September 2020 ($8,405,559) and October – December 2020 ($5,508,477).
The Tribunal also notes that the submitted Business Activity Statements for the applicant for the periods specified below, show the following income and salaries:

Date Sales income $ Salaries $

July 2016 – September 2016 18,308

October 2016 – December 2016 40,924

July 2016 to June 2017 1,404,041

July 2017 to June 2018 3,650,066

July 2018 to September 2019 6,071,724 23,754

July 2019 – Sept 2019 710,497 24,506

October - December 2019 1,131,910 22,707

TOTAL

January- March 2020 694,056 18,415

April – June 2020 1,206,478 12,462

July – Sept 2020 8,405,559 14,539

October - December 2020 5,508,477 12,462

TOTAL 15,814,570 57,878

January - March 2021 3,944,330 14,539

April – June 2021 504,879 15,433

July – September 2021 1,550,270 13,356

Date	Sales income $	Salaries $
July 2016 – September 2016	18,308
October 2016 – December 2016	40,924
July 2016 to June 2017	1,404,041
July 2017 to June 2018	3,650,066
July 2018 to September 2019	6,071,724	23,754
July 2019 – Sept 2019	710,497	24,506
October - December 2019	1,131,910	22,707
TOTAL
January- March 2020	694,056	18,415
April – June 2020	1,206,478	12,462
July – Sept 2020	8,405,559	14,539
October - December 2020	5,508,477	12,462
TOTAL	15,814,570	57,878
January - March 2021	3,944,330	14,539
April – June 2021	504,879	15,433
July – September 2021	1,550,270	13,356

Further, in relation to the applicant’s BAS and the fact that some of the BAS statements provide for unusual or extended periods, the applicant submitted a letter from Mr Jing Du Principal, JD Professional Services (Accountants), dated 20 April 2021, which states:
JD Professional Services acts as the tax agent for the above-named company (the
Company) since April 2017.
I would like to advise that the Company was used to pay GST instalment amount
calculated by the Tax Office without report for actual sales amount on its quarterly
Business Activity Statements for the financial years ended 30 June 2017, 2018 & 2019.
At the end of each financial year, the Company prepared and lodged the Annual GST Return
to reconcile its GST status and report the actual sales and purchase amounts for the
entire financial year. It starts to calculate and report the actual sales amount and GST liability/refund on its Business Activity Statement since the quarter ended 30 September 2019 which is the beginning of 2020 financial year till now.
Based on the applicant director Mr Yang’s statements at hearing regarding the impact of COVID-19, the Tribunal requested the applicant’s Business Activity Statements for the 2021 quarters which show as follows:

Date Sales income $ Salaries $

July – Sept 2020 8,405,559 14,539

October - December 2020 5,508,477 12,462

January - March 2021 3,944,330 14,539

April - Jun 2021 504,879 15,433

In addition, the applicant’s representative advised the Tribunal on 24 August 2021 by way of email, that the applicant lease at its store in Haymarket came to an end on 31 March 2021 and due to COVID-19, the applicant’s elected choose not to renew the lease “to avoid unnecessary costs”.
At the second hearing on 8 October 2021, the Tribunal requested further evidence from the applicant to establish that the applicant is still trading and will have the capacity to comply with r.5.19(3)(d).
The applicant director, Mr Yang, told the Tribunal at the second hearing held on 8 October 2021, that when the applicant’s lease came to an end on 31 March 2021, the applicant did not renew the lease as the applicant’s business has been badly affected by COVID-19. The applicant now operates its business from the residential home of Mr Yang and Ms Liu in St Ives, Sydney.
Mr Yang also advised the Tribunal at the second hearing on 8 October 2021, that the applicant operates its business now via ecommerce / online and trades solely as a wholesale operation. The applicant provides goods to domestic customers (as stated on the invoices with Australian legal entities which the Tribunal notes have valid ABN’s), and delivers directly to clients sourced by the nominee in China. The nominee advised that she has developed a new order form for clients for its online business and told the Tribunal that it uses two specialised WeChat sites (each with over 5,000 customers according to the nominee), to promote its business.
In relation to the applicant’s bank statements, which show significant large transaction amounts with unusually large cash deposits, director Mr Yang explained to the Tribunal at the second hearing that the applicant’s modus operandi has changed from retail and wholesale now to entirely (online) wholesale given the impact of COVID-19 and online business. Mr Yang stated that the business now operates as follows:
·     the applicant’s customers order products
·     the customers make payments via money transfer to Australian dollars
·     the applicant collects the payments (usually in cash) from the money changer and then deposits the payments into the applicant’s (CBA) business bank account
·     the applicant then makes payments to the suppliers.
On 22 October 2021, the applicant provided to the Tribunal multiple invoices from the applicant to its various customers and from suppliers to the applicant. These invoices show high value financial transactions (between $20,000 to $100,000 per transaction), for shipments of substantial volumes of (expensive) Penfolds wine and A2 powdered milk and baby formula, in addition to selected other products.
The invoices from the applicant’s suppliers included:
§ Weis Trading Pty Ltd and Nice picked Pty Ltd
o   A2 baby formula and milk products
o   Penfold wine
§ Activity Statement from Ba Nana Global Trading of Point Cook, Melbourne 2019 – 2020 showing invoices (numbers and $ amounts) and corresponding payments from applicant
- Multiple invoices to the applicant’s customers:
The Tribunal’s review of each invoice where the other entity has an ABN, indicates that in each case, that ABN is validly registered.
The applicant also provided further evidence to the Tribunal including ATO Tax returns (including ATO submission for 2021), and nominee Notice of Assessments for years ending 2019, 2020 and 2021.
Given the additional material provided to the Tribunal, and a review of the updated operations of the applicant since the delegate’s decision, the Tribunal is satisfied that it has the financial capacity to continue to employ the nominee on a full-time basis for at least 2 years.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(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 evidence that there is no equivalent Australian employee within the applicant’s business performing equivalent work to the nominee. The Tribunal must therefore be satisfied that the nominee’s terms and conditions of employment are no less favourable than those that would be provided to an equivalent Australian employee.
Noting that the applicant’s Employment Agreement dated 10 June 2017 provides for a salary of $57,878 (plus superannuation), the nominee’s PAYG for the financial year(s) 2015 to 2021, shows as follows:

Year Ending PAYG $

2015 22,847 *

2016 56,079

2017 56,079

2018 55,039

2019 54,582

2020 54,002

2021 56,973

The Tribunal has consulted a range of sources of information on remuneration rates for the nominated occupation in Australia, including:
the Payscale website (accessed 3 July 2021) indicates that an · Importer or Exporter (ANZSCO 133311) in Australia earns an average salary of $57,895 per annum, with the salary range being from $44,000 and $63,000 annually:
Import%2Fexport_Agent/Salary
- advertisements for experienced Importer or Exporter positions in Sydney listed on Seek.com.au (accessed 15 July 2021) as at $50,000-$60,000 where a salary range is given up stated: importer-or-exporter-jobs/in-All-Sydney
From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid.
The Tribunal is further satisfied that the contract of employment dated 10 June 2017 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The applicant’s Standard Business Sponsorships commenced on 14 January 2014 to 14 January 2017; 13 August 2014 to 13 August 2017 and then most recently from 15 January 2021 to 15 January 2026.
Specifically, the training requirements applicable for an established business with approval as a standard business sponsor in that period are set out in written instrument IMMI 13/030 as follows:
- A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same or related industry of the business; or
- B) 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.
IMMI 13/030 provides that expenditure that can count towards Training Benchmark B includes:
- paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
- funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
- employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
- employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
- evidence of payment of external providers to deliver training for Australian
employees
- on-the-job training that is structured with a timeframe and clearly identified
increase in the skills at each stage, and demonstrating:
assessments; and
82. The Tribunal notes that the applicant submitted to the Department the following Training Benchmarks payments:
·McKkrs Training $ 2020
·Sydney TAFE $2567
As noted at paragraph 78 above, the applicant was most recently approved as a standard business sponsor from 15 January 2021 for a period of five years to 15 January 2026. The regulation 5.19(3)(f)(i)(A) requires that it “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”. From 12 August 2018, the standard business is no longer required to meet the benchmark training requirement as required previously.
The Tribunal acknowledges that whilst the applicant has made Training Benchmarks payments (as noted at paragraph 81 above), since that time, the legislation has been amended. The requirement at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant thus the sponsorship obligation to provide training payments by the applicant does not apply in this case. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) 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.
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 requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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 before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or NSW by the applicant.

Accordingly, the requirement in r.5.19(3)(h) is met.
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.
Susan Reece Jones
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.

[2021] AATA 4872

5 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

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