ESSNADEL PTY LTD (Migration)

[2021] AATA 4272

ESSNADEL PTY LTD (Migration) [2021] AATA 4272 (16 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ESSNADEL PTY LTD

CASE NUMBER:  1821867

HOME AFFAIRS REFERENCE(S):          BCC2017/1800166

MEMBER:Antonio Dronjic

DATE:16 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 July 2021 at 11:52am

1. CATCHWORDS
   MIGRATION – nomination –Temporary Residence Transition nomination stream – Marketing Specialist – applicant failed to demonstrate that it met the training expenditure requirements – nominee did not hold one or more Subclass 457 visas for a total period of 2 years –– decision under review affirmed

2. LEGISLATION

3. Migration Act 1958, ss 65, 359

4. Migration Regulations 1994, r 5.19

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

5. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (the Regulations).

6. The applicant applied for approval on 20 May 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

7. 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 nominated occupation is Marketing Specialist (ANZSCO 225113) and the nominee is Ms Jiawei Cui.

8. The delegate refused the application on the basis the applicant failed to demonstrate that it met the training expenditure requirements during the period of the nominator’s most recent approval as a Standard Business Sponsor (SBS) prescribed by reg 5.19(3)(f)(i)(A).

9. The applicant applied to the Tribunal on 27 July 2018 for review of the delegate’s decision and with the application submitted a copy of the primary decision.

10. On 21 January 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of reg 5.19(3).

11. On 17 February 2021, the applicant responded to the Tribunal’s invitation. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

12. On 26 May 2021, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone, and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 6 July 2021. With the hearing invitation letter, the Tribunal invited the applicant to provide additional documentary evidence.

13. On 21 June 2021, the applicant’s representative provided additional supporting documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.

14. On 28 June 2021, the applicant’s representative provided additional supporting documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.

15. Mr Anisse appeared on behalf of the nominating business before the Tribunal on 6 July 2021 in his capacity of managing director to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

16. The business was registered in 1987. It operates Springfield House Function Centre. Together with his wife, Mr Anisse is the company’s shareholder. He is employed by the nominating business as a managing director. During the most recent financial year, he was paid an annual salary of approximately $35,000. In addition to his salary, in the past he was paid directors’ fees. However, in the 2019/20 and the 2020/21 financial years, he was not paid any directors’ fees.

17. Mr Anisse stated that he does not take profit out of the business. The Tribunal observed that, according to the financial documentation provided to the Tribunal, the business traded with a loss in both the 2019/20 and the 2020/21 financial years. Mr Anisse confirmed in his evidence that the business traded with a small loss during the past 2 financial years. He stated that the company is paying rent to him and his wife as they own the property leased by the business.

18. The business employs four full-time employees including Mr Anisse, two part‑time employees and several casual employees. The nominee works as a marketing specialist and is not supervising any other employees. She reports directly to Mr Anisse.

19. Mr Anisse was introduced to the nominee in late 2014 by his former accountant. He wanted to expand the business into Asian markets and was looking to employ someone who is fluent in Chinese languages and who understands the Chinese culture.

20. Mr Anisse interviewed the nominee and can recall that she had some marketing experience prior to commencing employment at Essnadel Pty Ltd. He confirmed that the business sponsored the nominee for a Subclass 457 visa. The SBS was approved on 21 May 2015 for the period of 5 years and Ms Cui was granted a Subclass 457 visa on the same day.

21. Mr Anisse gave evidence that the nominee’s position from the day she commenced her full‑time employment at the nominating business was marketing specialist. The Tribunal noted that the applicant provided the nominee’s ATO tax returns from 2015 to 2017 indicating that her occupation was clerk/administrator. This job classification was changed in 2019 to sales and marketing manager. Mr Anisse stated that he cannot explain why the nominee was classified as a clerk until 2019 as he was only relying on the advice received from his former accountant.

22. The Tribunal explained the requirements of reg 5.19(3)(c)(i)(A)(i) and noted that the nominee was not a holder of one or more Subclass 457 visas for a total period of at least 2 years during the period of 3 years before lodgement of the nomination application.

23. The Tribunal noted that the nominee was granted a Subclass 457 visa on 21 May 2015 and that the nomination application that is subject to the current review was lodged with the Department on 20 May 2017. This means that the total period the nominee held a Subclass 457 visa before lodgement of the nomination application was one day less than 24 months.

24. Mr Anisse stated that this issue was previously brought to his attention. He reiterated that he was guided and relied on the advice given to him by his former migration agent.

25. The Tribunal expressed its concerns related to the following additional issues:

    ·The applicant’s ability to meet reg 1.19(3)(f) as documentary evidence of training expenditure provided to the Tribunal does not state who attended training or whether that person is an Australian citizen or permanent resident; and

    ·The applicant’s financial ability to provide a minimum of 2 years of full‑time employment to the nominee considering that the business traded with a loss in the past 2 financial years.

26. Mr Anisse stated that his business was severely affected by the COVID-19 lockdown from March to July 2020, but that the nominee continued to be employed by the business and paid her salary.

27. Upon his request, the applicant was given additional time until 13 July 2021 to provide legal submissions addressing the issues raised by the Tribunal at the hearing and documentary evidence in support of its application.

28. On 13 July 2021, the applicant’s representative provided additional supporting documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment D.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. 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 reg 5.19(3), which is extracted in Attachment E to this decision. For the nomination to be approved, all the requirements must be met.

    Previous employment of the nominee: reg 5.19(3)(c)

31. Broadly speaking, to meet the requirement in reg 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.

32. The Tribunal has reviewed the occupations specified in the relevant instrument for the purposes of the second dot point above and is satisfied that the nominated occupation of Marketing Specialist is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

33. The Tribunal is satisfied on the evidence before it that:

    ·     The nomination was made on 20 May 2017;

    ·     The relevant 3-year period is therefore 20 May 2014 to 20 May 2017;

    ·     The nominee was granted a Subclass 457 visa on 21 May 2015 and remained valid until 21 May 2017;

    ·     The nominee commenced her full-time employment at the nominating business on 1 May 2015 and continues to work there until the present time. However, from 1 May 2015 until 21 May 2015, she was not a holder of a Subclass 457 visa.

34. In his post-hearing submissions of 13 July 2021, the applicant’s representative submitted that the nominee commenced her full-time employment at the nominating business on 1 May 2015 and was therefore employed for a total period of at least 2 years before the nomination application was lodged with the Department on 21 May 2017. Even if the Tribunal accepts that the nominee commenced her full-time employment on 1 May 2015, she is still unable to meet reg 5.19(3)(c)(A) which requires that, in the period of 3 years immediately before the nominator made the application, the nominee held one or more Subclass 457 visas for a total period of at least 2 years.

35. The Tribunal finds that in the period of 3 years immediately before the nominator made the application (from 20 May 2014 to 20 May 2017), the nominee did not hold one or more Subclass 457 visas for a total period of 2 years. The total period the applicant held a Subclass 457 visa is one day short of the required 2 years.

36. Accordingly, the applicant does not meet the requirements of reg 5.19(3)(c)(i)(A)(i).

37. While the Tribunal remains concerned about the applicant’s financial ability to provide the nominee with a minimum of 2 years of full-time employment, it is not necessary for the Tribunal to make a finding whether the applicant meets reg 5.19(3)(d).

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

    DECISION

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

    Antonio Dronjic
    Member

    
    
    

    Attachment A: Document List

    ·Essnadel Pty Limited Company Statement (3 May 2020)

    ·Essnadel Pty Ltd Financial Report for the year ending 30 June 2020

    ·Organisational Chart

    ·Business card for Albee Cui for Springfield House Function Centre

    ·Email trail from Albee Cui in regard to business of Springfield House Function Centre

    ·Facebook page of Springfield Function Centre

    ·Screenshots of Springfield House Function Centre Website

    ·Employment Contract between Essnadel Pty Ltd and Jiawei Cui (15 April 2017)

    ·Jiawei Cui Tax Return 1 July 2014-30 June 2015

    ·Jiawei Cui Tax Return 1 July 2015-30 June 2016

    ·Jiawei Cui Tax Return 1 July 2016-30 June 2017

    ·Jiawei Cui Tax Return 1 July 2018-30 June 2019

    ·Jiawei Cui Tax Return 1 July 2019- 30 June 2020

    ·Jiawei Cui Taxation Estimate for the year ended 30 June 2019

    ·Jiawei Cui Taxation Estimate for the year ended 30 June 2020

    ·PAYG payment summary for the year ending 30 June 2017

    ·Receipt for Essnadel Pty Ltd for General Food Safety Training (29/04/2016)

    ·Receipt for Essnadel Pty Ltd for General Food Safety Training (01/05/2017)

    ·Receipt for Essnadel Pty Ltd for General Customised Marketing Training (30/04/2018)

    ·Receipt for Essnadel Pty Ltd for Customised General Food Safety Training (26/02/2019)

    ·Tax Invoice for Essnadel Pty Ltd for Training Benchmark B (08/05/2020)

    ·Activity Statement for:

    oMay 2019

    oApril 2019-June 2019

    oJuly 2018

    oAugust 2019

    oJuly 2019-Septemeber 2019

    oOctober 2019

    oNovember 2019

    oOctober 2019-Decemeber 2019

    oJanuary 2020

    oFebruary 2020

    oJanuary 2020-March 2020.

    Attachment B: Document List

    ·Activity Statement for:

    oJanuary 2021-March 2021

    oJanuary 2021

    oFebruary 2021

    oApril 2021

    oMay 2021

    ·Marketing material for Springfield House Function Centre

    ·Marketing material for Flash Px/Plash Box

    ·Business card for Albee Cui for Springfield House Function Centre

    ·Email trail from Albee Cui in regard to business of Springfield House Function Centre

    ·Job description of Marketing Specialist/ANZSCO 225113.

    Attachment C: Document List

    ·Profit and loss for Essnadel Pty Ltd for the year ended 30 June 2021

    ·Letter of confirmation of employment of Jiawei Cui from managing director of Essnadel Pty Ltd (25 June 2021).

    Attachment D: Document List

    ·Legal submissions from migration agent, Stanley Chan (13/7/2021)

    ·Passport of Judy Osbourne Netana

    ·Letter from Frank Anisse stating confirmation of continuation of employment for Jiawei Cui (7/7/2021)

    ·Letter from Frank Anisse comparing the salaries of other similar positions to Jiawei Cui (9/7/21)

    ·Letter of confirmation of Springfield House Function Centre engagement in Food Safety Training Course (26/5/2017)

    ·Letter of confirmation of Springfield House Function Centre engagement in Food Safety Training Course (20/5/2016)

    ·Taste4business invoice to Essnadel Pty Ltd for Training Benchmark B (25/02/2015).

    ATTACHMENT E: 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.