HALO FORTUNE GROUP PTY LTD (Migration)

HALO FORTUNE GROUP PTY LTD (Migration) [2018] AATA 2394 (31 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  HALO FORTUNE GROUP PTY LTD
CASE NUMBER:  1727693
DIBP REFERENCE(S):  BCC2016/4346796
MEMBER:Cathrine Burnett-Wake
DATE:31 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 May 2018 at 1:34pm
CATCHWORDS
Migration – Subclass 186 (Employer Nomination Scheme) Nomination approval – Direct Entry Nomination stream – Corporate General Manager – Whether the application is compliant – Comprehensive business plan provided – Compelling evidence regarding need for the position – Requirements of nomination complied with – Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 245AR, 359(2)
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 November 2017 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 23 December 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found that the business had not identified the genuine need to employ the nominee in the position of a General Manager.
Mr Wei Ming Chen, Director of Halo Fortune Group Pty appeared before the Tribunal on 26 March 2018 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.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 14 February 2018, the Tribunal wrote to the applicant, through their representative, the authorised recipient for correspondence. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Migration Act 1958 (the Act). Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(4), including but not limited to the particular criteria that the Department had found were not met. The Tribunal provided a copy of r.5.19(4) for reference.
On 1 March 2018 and again on 20 March 2018, the Tribunal received documents and information in support of the applicant in response to the s.359(2) request. These documents were not available to the delegate at the time they made their decision.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, 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.
On the basis of the information in the Department of Immigration's (the Department’s) file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The identified occupation in the application is Corporate General Manager (ANZSCO 111211), with a salary of $190,000.
The delegate, in their decision, stated:
‘…From all the information provided I have no doubts that the business actively and lawfully operates business in Australia, however, due to the size of the business (11 employees) and based on the information in our systems I have doubts about the genuineness of need of a General Manager with the proposed salary.
To justify the salary to be paid to the nominee, one of the documents the nominator has provided is an advertisement on Seek for a General Manager of Operations dated 21/03/2017. The nominator tried to justify the salary of $190,000 to the nominee comparing their offer with the salary on the advertisement ($150,000-$200,000). However, the role to be performed by the nominee is not comparable with the role of the advertised position, which as a General Manager who will be overseeing 6 Regional Manager and managing over 40 staff.
Corporate Services Managers have the complete control of the business procedures and day to day operations of the company.
According to the Employment contract, the nominee’s duties do not include the complete control of the business.
The Organisation Chart shows that there are 11 employees in the business and the Director. There is no evidence regarding the difference between the Director’s duties and the proposed nominated position.
The nominator has also tried to justify the need of a General Manager in their business stating that the nominee has successfully developed 7 HR clients from China and provided the extract of a bank statement. However, I give no weight to this document since the bank statement does not show the Account’s name.
Furthermore, the letter from the nominator states that they are seeking an overseas candidate for the position of General Manager. The nominator has not provided evidence of that the position was advertised for Australians. The purpose of the Employer Nomination scheme program is to help Australian businesses to bring skilled people from overseas when they could not find a suitable person in Australia.
The nominator has not demonstrated that they have made efforts in recruiting Australians. Since I found that the business has not identified the genuine need to employ the nominee in the position of General Manager, therefore the nomination does not meet 5.14(a)(ii)…’
The representative provided written submissions in response to the reasons why the delegate refused the application. They state:
‘… First of all, I would like to point out that there is jurisdiction error in the case officer’s decision record. As the regulation requires the nominator to identify a need to employ the nominee, it does not provide the power for the case officer to assess the genuineness of the need. The signed employment contract and director statement submitted to the department of home affairs have indicated that the nominator identified a need to employ the nominee and the nominee will work in the position of general manager under the direct control of the nominator. The case officers assessment towards 5.19(4)(a)(ii) is rather the genuine need to employ the nominee instead of identifying the need from the nominator. Furthermore, the case officer says ‘The purpose of the Employer Nomination Scheme program is to help Australian businesses to bring skilled people from overseas when they could not find a suitable person in Australia. The nominator has not demonstrated that they have made efforts in recruiting Australians.’ It is obvious that the case officer made the decision to refuse the nomination on the above findings. However, this finding is not required by the relevant regulation 5.19(4)(a)(ii), it’s clear that the case officer did not follow the regulation 5.19(4)(a)(ii) and took irrelevant factors into consideration to make a decision…’
Regulation.5.19(4)(a)(ii) requires that the application for approval ‘identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control’. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2]
[1] Macquarie Dictionary online (accessed 24 May 2018).
[2] PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).
The Tribunal is of the position however, that there is no requirement under r.5.19(4)(a)(ii) to test the local labour market to demonstrate that a suitable Australian could not be found. The Tribunal accepts the representative’s argument on that point.
The Tribunal had the benefit of being able to hear oral evidence from Mr Chen and to discuss the applicant’s ‘identified need’ to employ the nominee to work as a Corporate General Manager under the nominator’s direct control. Mr. Chen explained in detail the nature of the business, its operations and its future expansion plans. The business operates three main activities, Halo HR, Adcess Marketing and Halo Loan (mortgage broking). The company offers services that best fit the needs of their Chinese clients who want to venture into a new life or business in Australia, as well as those who want to market their business and products to the Chinese population. Evidence was provided to the Tribunal of the nature of the business; including copies of marketing contracts, it holds with Australian companies to market their services and products to the Chinese population market within both Australia and China.
Mr Chen outlined to the Tribunal how the nominee’s skills and experience were well placed to ensure the smooth operations of the company’s day-to-day business. Mr Chen further outlined that it was important that the person fulfilling the nominated position had extensive experience with a Chinese client base and doing business in China. He claimed finding an Australian with the type of experience required would be difficult.
The business has only been in operation for several years. Mr Chen explained that their plans were for expansion and described how they planned to achieve further growth, with one key aspect being the nominee fulfilling the role of Corporate General Manager. The financials provided to the Tribunal reflected growth, which was increasing year-on-year. A comprehensive business plan, which sets out the short and long term strategies of the business, including financial projections was provided, which supports the verbal evidence provided by Mr Chen of the company’s expansion plans.
Mr Chen explained to the Tribunal, that due to a number of other business interests, beyond the Halo Fortune Group, he wanted to step aside from the business to develop and grow these other interests, as such, the nominee was required in order for him to do so. Mr Chen outlined that the nominee would be responsible for the day-to-day management and operations of the business, with full autonomy, as he was not planning to participate in these functions in the future.
Mr Chen spoke passionately about his business and was able to articulate with detail about both the need and genuine need for the nominator to employ a paid employee in the role of Corporate General Manager under the nominator’s direct control.
The Tribunal is satisfied, based on Mr Chen’s verbal evidence, along with the supporting information that the applicant has been able to identify a need for the nominator to employ a paid employee to work in the position under their direct control.
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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. During the hearing, Mr Chen described the nature of his business and its operations in general. He told the Tribunal about the types of work his company undertook as well as discussing staffing levels and their roles. He also told the Tribunal about his future intentions for the business, including expanding and diversifying.
The Tribunal is satisfied on the basis of the material before it, including the business' registration documents, organisational chart, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The nominator’s business activities do include labour hire, through its HR services division, however, it was confirmed that the nominated position of Corporate General Manager is within the business activities and not for the hire to unrelated businesses or any related entities. Based on Mr Chen’s verbal evidence during the hearing and written documentation provided to the Tribunal, it is satisfied that the nominated position is within the business activities of the nominator.
Accordingly, the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the signed employment contract, a letter of guarantee dated 23 December 2016 and the written submissions. All confirm the nominee will be employed on a full-time basis for at least two years, and that her employment contract does not expressly exclude the possibility of extending the period of employment.
The Tribunal has had regard to the documents provided on review, including the nominator's financial statements and BAS. A letter of support has also been provided by the nominator’s accountant confirming its financial capacity to pay the nominee. The Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's salary.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is met
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The employment contract and primary application form indicates that the nominee's base salary is $190,000 plus superannuation. It was noted in the application form that there is no Australian performing equivalent work at the same location.
Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au, indicate that the base salary for a Corporate General Manager, depending on experience, is between $89,295 and $258,556. The Tribunal is satisfied on the basis of this information that the nominee's base salary is within the appropriate range of that normally paid to Corporate General Manager in Melbourne.
The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 2016/059 the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met IMMI 13/030; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has reviewed the position description provided as part of the application. At hearing, Mr Chen also described the duties the nominated position would entail. Based on the position description that was provided, and Mr Chen’s verbal evidence, the Tribunal is satisfied that the duties of the nominated position correspond with those listed within the relevant instrument for the occupation of Corporate General Manager.
Evidence has been provided of the company’s ability to meet training benchmark requirements. Receipts for training indicate that 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 has occurred. Submissions from the representative of the company’s ability to meet training benchmark requirements were also provided, which the Tribunal accepts.

Accordingly the requirements of r.5.19(4)(h) are met.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Cathrine Burnett-Wake
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.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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).

[2018] AATA 2394

31 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction