J.K. Meats Pty Ltd (Migration)

[2020] AATA 5484

J.K. Meats Pty Ltd (Migration) [2020] AATA 5484 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  J.K. Meats Pty Ltd

CASE NUMBER:  1811178

HOME AFFAIRS REFERENCE(S):          BCC2017/1727013

MEMBER:Stavros Georgiadis

DATE:9 November 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 9 November 2020 at 5:42pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition Nomination stream – position of Marketing Specialist – training requirements provided outside of sponsorship agreement period – actively and lawfully operating a business in Australia – company ceased operations – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 359
Migration Regulations 1994, r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 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).

2. The applicant applied for approval on 15 May 2017. 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 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i)(B) of the Regulations because the delegate concluded that the training requirements were provided outside of the sponsorship agreement period.

   The delegate noted: “the trainings commenced on 20/03/2017. The training provider clearly quoted invoice numbers of all three receipts in the training proposal 2017 documents, which indicates that the trainings which were provided to the company staff was outside of the sponsorship agreement period.”

5. Mr Yuhai Wang is the nominee for the position of Marketing Specialist (ANZSCO 225113) nominated by the applicant, J.K. Meats Pty Ltd.  Mr Wang is also one of the applicant’s two Directors. Mr Wang appeared before the Tribunal on 9 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Status of the nominator: r.5.19(3)(b)

9. 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.

10. The applicant was accepted as a standard business sponsor which was valid, according to the Department’s records, from 10 September 2013 to 10 September 2016.

11. At the hearing, the Tribunal questioned Mr Wang about his involvement with J.K. Meats Pty Ltd.  He told the Tribunal that he has been a Director of the company since July 2015 and that he continued as one of the company’s two Directors since that time.  The Tribunal noted that at the time of application for the nomination on 15 May 2017, Mr Wang was both a Director of the company and also the named nominee for the position of Marketing Specialist albeit he used the title, Marketing Manager.  Mr Wang explained that he was an employee of the business in 2013 before he was appointed as a Director.

12. The Tribunal asked Mr Wang at the hearing about how long the company had been operating. He told the Tribunal that the business ceased operations from March 2018.  The Tribunal questioned Mr Wang how this had come about. He explained that there had been litigation action in the Supreme Court of NSW involving the other Director of the business and as a consequence the company had ceased operations and has not operated since March 2018.

13. The Tribunal accepts the applicant’s oral evidence in this regard as it is broadly consistent with financial records that do not continue beyond December 2017 and also other information about the timing of ceasing operations in 2018 contained in a non-disclosure Certificate under s376 of the Act dated 26 November 2018 discussed with Mr Wang at the hearing.  In accordance with the procedure under s359AA of the Act Mr Wang confirmed (without asking for additional time to respond) information put to him at the hearing, inviting response or comment, that the business had ceased operations in early 2018 and had not operated again.

14. The Tribunal places weight on the oral evidence provided by Mr Wang and accepts that the applicant’s business ceased operations in 2018 and has not operated since. Accordingly, the Tribunal finds for the purposes of r.5.19(3)(b), that the applicant is not actively and lawfully operating a business in Australia.

15. Given the above, the requirement in r.5.19(3)(b) is not met.

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

    DECISION

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

    Stavros Georgiadis
    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.