Huang (Migration)

[2022] AATA 3279

Huang (Migration) [2022] AATA 3279 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jun Huang
Ms Jun Zuo
Ms Qianyue Wu

REPRESENTATIVE:  Ms Cheryl Wong

CASE NUMBER:  1908364

HOME AFFAIRS REFERENCE(S):          BCC2017/1418961

MEMBER:Stephen Witts

DATE:4 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223 of Schedule 2 to the Regulations; and

Statement made on 04 July 2022 at 11:41am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Importer or Exporter – financial capacity to employ the applicant – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 Home Affairs on 4 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 April 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position importer or exporter ANZSCO code 133311.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

6. The primary applicant, Mr Jun Huang, appeared before the Tribunal on 19 May 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Ausaca Pty Ltd.

8. The applicants were represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the subject of an approved nomination for an employer nominated scheme subclass 186 visa.

11. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

12. The Tribunal notes that it has been provided with a copy of the delegate’s decision record pertaining to the nominator dated 6 March 2019 provided by the applicant. According to the delegate it was not satisfied that the nominator has demonstrated that it has the financial capacity to be able to pay the full-time salary for the nominated position of importer and exporter for at least the next two years. According to the delegate it assessed the financial statements that had been provided and noted that this demonstrated that the business had shown net liabilities for the 2016 and 2018 financial years and that it had also made consecutive tax losses from 2011 until 2014 financial years. It was further noted by the delegate that the company had indicated that it employs five Australian citizen employees and one foreign employee and that the gross payroll expenditure of the organisation in that 12-month period was approximately $180,000 and that this figure did not match up to the company’s BAS statement material which was less than that figure. It was also stated that the applicant was employed with the business as a 457-visa holder on a salary of $56,800 since 17 December 2014 and that the total payroll was not sufficient to cover this and the other employees. It was further noted that the training cost material did also not match the financial statement material.

13. The Tribunal also notes that evidence was provided by the applicant prior to the hearing. This included a submission from the applicant’s representative dated 3 March 2022 which included details of the company’s registration as a business and its ACN number 144836340 noting that Mr Sanyao Liu, (also known as Kevin Liu) is a director and majority shareholder of the company. Also included were tax returns for the financial years from June 2015 to June 2021 and BAS statements and financial reports for the same period.

14. The Tribunal notes that also provided was an organisation structure chart indicating that the nominated position of importing officer reports to the role of managing director, Mr Liu. It was noted that all the other employees at the company are either Australian citizens or permanent residents and that the company has grown by two new positions being warehouse assistants. The Tribunal notes that also detailed on this organisation chart was an operations manager, the nominator’s wife, a sales manager and a sales representative.

15. The Tribunal notes that a job description for the nominated position of import officer was provided including a comparison with the duties and responsibilities under the ANZSCO framework. Also included were a selection of emails and other documents which were contended by the applicant’s was evidence of the applicant undertaking those duties and responsibilities, as was information about the conditions of employment for the nominated position noting that the nominee will be employed as an import officer for the company for a period of two years from the date of the approval of his visa, attached was a copy of an employment agreement dated 1 January 2022 noting that the applicant continues to work for the nominator. It was also asserted that the position is paid in accordance with a market range within Australia and that the salary was $62,800 plus superannuation and that there is no equivalent Australian citizen or permanent resident carrying out the same role employed by the company. It was stated that similar positions in Australia are paid within a scale from approximately $50,000 to up to approximately $70,000.

16. The Tribunal also notes that it was stated that the applicant has been employed by the nominator since 1 April 2015 and that he did work full-time for at least two years in the last three years immediately before the date of the nomination application on 18 April 2017. Upon his employment it was stated that he was paid $56,800 per annum.

17. It was stated by the company that it has the financial capacity to employ the applicant for at least the next two years and that the financial position of the company demonstrates this ability stating that its sales have grown from approximately $500,000 in 2015 to approximately $2 million in the most recent financial year.

18. It was further stated that the company is continuing to grow, opening more offices and warehouses to maintain its increasing client base.

19. In regard to the specific concerns raised by the delegate at the time of the decision it was stated that the BAS statements did not fully cover the full financial years since employment because the company, by mistake, added the superannuation guarantee amounts to its BAS statements. It was also stated that the alleged inconsistencies in the payroll as contended by the delegate are explained by these superannuation contribution amounts. It was also stated that the alleged inconsistencies in the sales figures occurred because the delegate calculated sales according to different definitions within the tax years including fringe benefit employee contributions which were not relevant to assessing the sales made by the company. It was further stated that the BAS statements appeared inconsistent because they included GST amounts owed to the ATO which in fact are not recognised as revenue and should not have been added when calculating the sales figures. It was also stated that the contention by the delegate that the training cost payroll material did not match the company tax returns because they were inclusive of super contributions which, according to this submission, should be included in payroll calculation for the purpose of training benchmark payments.

20. In regard to the contention by the delegate that the payroll was not sufficient to pay the five Australian employees including the nominee it was stated that this appeared to be the case because the two principal shareholders did not pay themselves a significant salary during this time as it was decided that its core staff should be paid regularly to ensure they stay with the company while the two principal shareholders did not take a regular salary during that time.

21. It was further stated that the company is not aware of being subject to any monitoring by the Department nor has it been the subject of any investigation by the Department.

22. The Tribunal also notes that the applicant’s representative provided a submission dated 11 May 2022. In this submission was provided evidence in regard to the applicant undertaking of the duties of this position including invoices, emails with suppliers, a statement regarding training requirements, and other material.

23. The Tribunal notes that a further submission was provided specifically in regard to the applicant dated 11 May 2022. In this submission it was stated that there was no registration or membership material of any professional body required for this position, that the applicant will remain in Australia and is likely to be established in Australia without imposing costs on the Australian community, that the nominee is the holder of a Chinese passport, that he is married to the dependent on his visa and that the other dependent is her daughter and that they form the same family unit and that they also hold Chinese passports.

24. At the hearing the Tribunal had a discussion with the nominator and the applicant regarding the application.

25. The nominator stated that he first arrived in Australia in 2008 and became an Australian citizen in 2010. He stated that he began a wholesale business related to the hardware, gardening and cleaning industries before starting his current business. He stated that profitability was a difficult problem for a period of time but that he moved his business from servicing customers directly to importing and exporting material for other businesses, in particular, sandpaper and sand belt products which he sourced from his home province in China. He stated that he knew the nominee prior to 2014 as he is his wife’s sister’s husband. He stated that the nominee worked as an import and export officer with a foreign trade department in China for some time and that he also worked for a sandpaper company for some years. He stated that he had been trying to employ an import officer in Australia and provided evidence that he had advertised and interviewed prospective employees at that time in Australia but that none were suitable because of a lack of specific industry experience and a knowledge of the Chinese business landscape, his principal source of his imported products to Australia.

26. The applicant stated that he first came to Australia to take up the position of import officer in April 2015 and that he remained on a 457 visa until the refusal of this application which has meant that he has been on a bridging visa.

27. The Tribunal had a detailed discussion with the parties regarding the business circumstances from 2014 until 2021 noting specifically the low wages often paid during the early days of the business, particularly from 2014 until 2017. The nominator provided evidence that during this time he and the other principal shareholder, his wife, working as the operations manager only worked part-time in the business and did not pay themselves a salary. He also provided evidence that as the business grew, from a total income of $200,000 in 2014 to a total income of $2 million by 2018 that the wages bill started to increase and that now all participants are working full-time in the business except for him and that the salary and wages component of the business is now approximately $300,000. The Tribunal also had a discussion about the other matters raised by the delegate, and reviewed the submissions provided regarding other financial aspects of the business and its growth and profitability over the last few years.

28. The Tribunal has considered the evidence provided very carefully and finds that the business does have the financial capacity to employ the applicant who is undertaking the duties and responsibilities of an import officer and that the applicant remains employed full-time by the nominator since his employment in 2015.

29. The Tribunal therefore finds that the applicant is the subject of an approved nomination.

    Nomination of a position

30. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

31. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

32. The Tribunal finds that the applicant also meets all the above requirements.

33. Therefore, cl 186.223 is met.

34. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

35. The Tribunal also finds that as the primary applicant met the criteria for the grant of the visa that the secondary applicant also met the criteria for the grant of the visa.

    DECISION

36. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223 of Schedule 2 to the Regulations; and

    Stephen Witts
    Member

    
    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.