Jiang (Migration)

[2017] AATA 1141

Jiang (Migration) [2017] AATA 1141 (23 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yijie Jiang
Mr Huitie Tan
Miss Dunzhu Tan
Miss Tun Chin Tan

CASE NUMBER:  1509690

DIBP REFERENCE(S):  CLF2014/122806 CLF2015/1194 CLF2015/25206

MEMBER:R. Skaros

DATE:23 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) Subclass 890 visas.

Statement made on 23 June 2017 at 1:13pm

CATCHWORDS

Migration – Business Skills (Residence) (Class DF) visa – Subclass 890 – Full-time employees – Employment requirement – No evidence of wage payments – Insufficient evidence of employment

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 890.214, cl 890.216

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 Immigration on 7 July 2015 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 September 2014. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.890.214 and cl.890.216 of Schedule 2 to the Regulations.

3. When applying for review the applicant provided a copy of the delegate’s decision record.

4. The applicant appeared before the Tribunal on 10 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Suzhen Zhou (Susan), who is the applicants’ business associate. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case ultimately turned on whether the requirements in cl.890.214 have been satisfied.

8. The applicant applied for the visa on 18 September 2014. At the time of application she held a Subclass 163 visa that was valid until 20 September 2014.

9. The applicant nominated Ausbaker International Pty Ltd as her main business. Ausbaker International Pty Ltd operates a Supermarket selling Asian groceries in Campsie NSW.  The applicant holds 40% of the shares in Ausbaker International Pty Ltd (the Company).

10. The Tribunal received a copy of a current extract for Ausbaker International Pty Ltd which indicates that the applicant holds 150 of the Company’s 374 shares which equates to 40.1%. The relevant document notifying ASIC of share issue, changes to share structure and changes to shareholding was received by ASIC and processed on 19 September 2012. The Department’s file also included a shareholder agreement between Ausbaker International Pty Ltd and the applicant dated 11 September 2012. The shareholder agreement indicates that the applicant will invest in the Company and that additional shares will be issued after which the applicant will be entitled to 40% of the shares. It indicates that the Company will issue 150 additional ordinary shares to the applicant and that the applicant agreed to pay the Company an initial capital investment of $60,000 and to provide the Company an interest-free shareholders loan of $100,000 on or before the settlement date.  A copy of a bank cheque to YERS Trust Account dated 13 September 2012 for $160,000 and a trust account receipt from Ren Zhou Lawyers confirming receipt of the settlement funds are also included on the Department’s file, as was a copy of a cheque from the trust account of Ren Zhou Lawyers to Ausbaker International dated 19 September 2012. The balance sheet provided for the year ended 12 September 2014 indicates, as a non-current liability, an unsecured loan from the applicant for the amount of $160,000. Also provided was a Statement of Shareholder Loan which indicates that new shares were issued on 18 September 2012 and a bank transfer of $160,000 occurred on 19 September 2012.[1] A copy of a cheque from the trust account of Ren Zhou lawyers to Ausbaker International dated 19 September 2012.

    [1] F. 208 of the Department’s file.

11. At the hearing, the applicant gave evidence that she transferred $160,000 to Ausbaker account for 40% of the shares. The applicant was not sure whether the amount paid was just for the shares or if part of it was a loan to the Company. When the Tribunal discussed with the applicant the terms of the shareholder agreement, she indicated that she does not know how the accountant made the books.

12. At the hearing, the Tribunal also raised the concern about the requirement in cl.890.211 which requires the applicant to have had an ownership interest in the main business for a period of two years immediately before the application was made. The Tribunal was concerned that because the ASIC register indicated that the applicant had not become a shareholder until 19 September 2012 and the applicant had lodged the application on 18 September 2014, that she may have been one or possibly two days short of the two year requirement. 

13. After the hearing, the Tribunal received submissions stating the applicant purchased shares for $60,000 and made a loan of $100,000 to the Company in accordance with the terms of the shareholder agreement. It was submitted that the applicant provided consideration of $160,000 on 13 September 2012 and that the Department accepted that this was the date on which the ownership interest was created. It was submitted that the applicant had a beneficial ownership interest in the Company until she acquired the legal title on 19 September 2012 when her shareholding was registered with ASIC.   

14. The Tribunal has had regard to the above information, and while it acknowledges that the cheque from the applicant to the lawyer’s trust account was dated 13 September 2012, it notes that the cheque from the trust account of Ren Zhou lawyers to the Company is dated 19 September 2012 and the statement of shareholder loan suggests that the shares were issued on 18 September 2012 and that the transfer of the funds occurred on 19 September 2012. Furthermore, no explanation has been provided as to why the financial reports and statement of shareholder loan indicate that the applicant’s loan to the company is $160,000 rather than $100,000 as indicated in the shareholder agreement.

15. In light of the findings made below regarding the requirements in cl.890.214 not having been satisfied, the Tribunal did not consider it necessary to resolve the conflicts in the evidence regarding the amounts paid for the shares and/or loan to the Company or make findings on whether the applicant held an ownership interest, including a beneficial interest, for at least 2 years immediately before the application is made.

16. As indicated above, the issue in this case tuned on whether the main business, in the period of 12 months ending immediately before the application is made, provide an employee, or employees (who were Australian citizens, Australian permanent residents or New Zealand passport holders) with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 2 full-time employees over that period of 12 months.

17. It was submitted that the business employed two Australian permanent residents, Ms Chunmain Yuan and Mr Junxin Zhou. The documents provided to the Department with the application in respect of the nominated employees relevantly included the following:

    • Lodged business activity statement for the Company for periods between 1 July 2012 and 30 September 2014.
    • Financial statements for the Company for the year ended 12 September 2014.
    • Contract of employment for Junxin Zhou for the position of Supermarket Assistant on a full-time permanent basis indicating that the employment commences on 1 August 2013, that the salary will be 32,760, plus other payments and superannuation. It indicates he will be paid fortnightly on Friday of every second week.
    • Contract of employment for Chunmian Yuan for the position of Supermarket Assistant on a full-time permanent basis indicating that the employment commences on 1 October 2012, that the salary will be 30,321, plus other payments and superannuation. It indicates she will be paid fortnightly on Friday of every second week.
    • PAYG payment summary form completed by the Company for Chunmian Yuan for the years ending 30 June 2013, dated 10 August 2013, 30 June 2014, dated 15 August 2014.
    • PAYG payment summary form completed by the Company for Junxin Zhou for the year ending 30 June 2014 dated 15 August 2014.
    • Screen printout indicating the transfer of $700.06 to BT Super for Life - SG (110414414) on 11 September 2014 from an ANZ account.
    • Screen printout indicating the transfer of $2768 to BT Super for Life SG – by Junxin Zhou on 10 September 2014 by B-pay - reference 111260022.
    • Screen printout indicating the transfer of $2272.73 to BT Super for life SG -  Chunmian (reference 110414414) on 3 September 2014 from an ANZ account.
    • Screen printout indicating the transfer of $2272.73 to BT Super for life SG - Yijie Jiang (reference 110407012) on 3 September 2014 from an ANZ account.
    • Document indicating the transfer of $2457 to BT super for life SG - Yijie Jiang (reference 110407012) on 31 October 2013 from an ANZ account.
    • Document indicating the transfer of $2103.84 to BT super for life SG - Chunmian BT (reference 110414414) on 31 October 2013 from an ANZ account.
    • BT superannuation fund form providing details of employee - Chunmian Yuan

18. The delegate was not satisfied that the documentation was sufficient to demonstrate that the business employed at least two full-time Australian citizens/permanent residents throughout the 12 months preceding application lodgement and requested the applicant to to provide further evidence regarding the employment of the two Australians, including certificates of currency for WorkCover insurance that covered the period from September 2013 to September 2014 and evidence of the contributions to the employees’ superannuation provider in the form of statements\letters from the actual provider (BT Super) acknowledging the payments made by the Company and showing the employees’ names.

19. On 27 April 2015 the Department received the following documents:

    • PAYG Payment Summary form for the Company for the year ending 30 June 2014 indicating that the total number of payment summaries issued for that year was 8 and the total gross payments or taxable component was $286,406, together with copies of the 8 PAYG payment summaries for that year, which included those previously provided for Chunmian Yuan and Junxin Zhou.
    • An organisational chart noting the names of two permanent resident employees.
    • Letter from DBN Accountants stating that Mr Zhou and Ms Yuan are employed by the Company, that they are working 35 hours a week since commencing employment and that their wages was $630 a week ($18 per hour) for the period before 30 June 2014 and that the wages were increased from 1 July 2014.
    • Copies of invoice and account statement issued by GIO for workers compensation policy for the period from 1 June 2013 to 1 June 2014 adjusted on 31 January 2015.
    • Copy of completed GIO form Small employer declaration of actual wages dated 14 November 2014.
    • Pay records document itemising information regarding the employment of the two nominated employees. The itemised records set out the hours of work, hourly rate, gross pay, amounts under the heading AustralianSuper, net pay in cash, the pay period, date of payment and the signature of the employee against the records for each fortnight.
    • Documents evidencing the electronic payment authorised to be made to BT Super for Life in October 2013, September 2014 and in 2015 and business bank statements reflecting these payments.
    • Original handwritten records of hours.

20. The delegate accepted that the nominated employees were permanent residents and indicated that there was no evidence that they are members of the applicant’s family unit. There is no evidence before the Tribunal to suggest this is not the case, accordingly, the Tribunal adopts these findings.

21. The delegate was concerned that despite the applicant being requested to provide specific evidence that would enable the matching of superannuation payments made by the Company to the nominated employees, the applicant had only provided copies of electronic authorisation for payments made to BT Super for Life together with business bank statements to confirm the payments. The delegate noted that it was not clear from the electronic authorisations who the payments were being made for. The delegate further noted that the payments occurred in October 2013, September 2014 and April 2015 but no evidence had been provided detailing what periods these payments actually cover. The delegate observed that the payments to BT Super were not regular and that there was no evidence of payments having been made between November 2013 and August 2014. The delegate considered that the applicant had failed to demonstrate that she met the requirements in cl.890.214.

22. The delegate was also concerned about the nominated employees’ rate of pay and about the business consistently lodging its activity statements past the due date and accumulating debts to the ATO totalling $20,861 and concluded that the requirement in cl.890.216 were not satisfied. The Tribunal however did not ultimately consider it necessary to consider the requirement in cl.890.216. Given the issue on which this has case turned, the Tribunal has limited its considerations to the evidence that is relevant to the requirements in cl.890.214.

23. On review the Tribunal received submissions and documents. The Tribunal notes that a number of the documents provided post-dated the date of application, such as the documents for Mr Shen Yu who appears to have commenced employment with the Company in 2016 and payslips and documents for the nominated employees from 2015. The Tribunal also notes that the letter from DBN Accountants dated 28 February 2017 refers to the nominated employees’ employment since 7 July 2015. The itemised tax account from July 2015, documents relating to superannuation for the employees with AMP, currency of workers compensation for 2015/2016 and Fair Work commission documents were also were not directly relevant to the 12 months period immediately before the date of application and for this reason the Tribunal makes limited reference to these documents in its consideration of the requirements in cl.890.214.

24. Of relevance however is the document entitled Transaction History, in respect of Ms Chunmian Yuan’s BT super for life account for the period between from 1 July 2012 to 16 July 2015. The transactions show credits into the account (No.110414414), which are consistent with the funds transferred noting Ms Yuan’s name.

25. The Tribunal also received submissions from the representative who provided background information about the applicant. It was submitted that the requirements relevant to establishing and operating a business vary enormously from China to Australia. It was submitted that although the applicant had many years of experience in China, was aware that the processes from China to Australia was vastly different she nevertheless was not prepared when the full extent of those differences became apparent. It was submitted that the applicant acquired 40% of the shares in the main business at the time when Susan was the general manager and it was agreed that Susan would gradually transition out of the general manager role and that the applicant would assume greater responsibility within the Company. It was submitted that the applicant was wholly reliant on Susan to transition into the general manager role. That the applicant was not aware of many of the obligations and processes for various reasons, the main reasons for her knack of lack of knowledge were different business operations between China and Australia, the applicant’s did not have prior experience involving control and responsibility of legal compliance issue, the applicant was wholly reliant on Susan to train her in the company’s operations and trusted her and had no reason to understand that Susan’s advice was insufficient. It was submitted that the applicant placed great reliance and trust on the company’s accountant who from time to time advised on cash flow wage rates taxation and other legal requirements and that the applicant struggled to perform all the duties required to the required standard.

26. The representative provided a full list of all of the documents provided, including in respect of each of the nominated employees and another employee who commenced work after the application was made, Mr Yu, and it was submitted that the evidence demonstrates that cl.890.214 had been met. The documents are largely those already mentioned earlier in the decision and the Tribunal had the opportunity to discuss those documents with the applicant at the hearing and has considered their probative value further below in its reasoning.

27. The applicant also provided a statutory declaration in which she detailed her involvement with the Company and the purchase of the shares from the existing owners. She stated that she assumed the general manager position from Susan and did not get much formal training or advice from professionals such as business consultant or workplace relations consultant and instead relied on her business partner Susan. Since receiving the Department’s refusal she realised the shortfalls and has changed the way she operates the business.

28. At the hearing the Tribunal had the opportunity to take evidence from the applicant regarding her involvement with the business, including the number of people that were employed when she joined in 2012. The applicant gave evidence that the business employed many people but had about 8 to 9 regular employees. She confirmed that the two nominated employees, Chumain Yuan and Junxin Zhou, are Australian permanent residents.

29. The applicant gave evidence that Ms Yuan commenced employment in October 2012 and that her hourly rate was $16.66 an hour. She stated that Ms Yuan got paid for 35 hours a week but she paid the salary every fortnight. When asked how the salary was paid to Ms Yuan, the applicant stated that sometimes Ms Yuan had her payment earlier than arranged and had prepayment for part of her wage. She said she paid Ms Yuan fortnightly in cash and paid the remaining wage. She realised after talking to the accountant that she should deduct tax.

30. The Tribunal explained to the applicant that there was no independent verifiable evidence regarding the payments given to the nominated employees and that in the circumstances it was difficult for the Tribunal to be satisfied that the nominated employees were paid a salary/wage. 

31. In response, the applicant stated that she has submitted material that shows the employees signed to say they got paid. The Tribunal expressed to the applicant its concern that while the documents (e.g. pay records) show the employee’s signature, it is possible that she could have asked the nominated employees to sign those records. It put to the applicant that the other supporting documents provided regarding wages for the nominated employees, including the pay record and PAYG Summary statements were all generated by the Company and that it was concerned that there is no contemporaneous evidence provided to demonstrate that the employees had in fact received the claimed wages.

32. In response, the applicant stated that she will change that later to transfer and pay by cheque. She stated that some of the employees were students and loved to receive cash but if it is a must she will adapt. The Tribunal explained to the applicant that it was required to assess the evidence at a particular point in time, which is prior to the date of application, so as to determine whether she satisfied the requirements in the relevant period. In response, the applicant stated that no one told her that she should pay by cheque. The Tribunal explained to the applicant that she had invested funds in the business so she could apply for the permanent residence business visa and would have been aware that she had to meet certain requirements to qualify for the visa and the onus is on her to ensure that she kept verifiable records to demonstrate that she met the requirements.

1. The Tribunal put to the applicant that the gaps in the evidence prior to the date of application may lead it not to be satisfied that the employment requirement has been met. The Tribunal acknowledged that superannuation payments had been made, but noted that this was done in a lump sum prior to the application being lodged. The applicant stated that Susan used to pay that way and taught her and that the migration agent did not tell her about keeping records.

2. The Tribunal referred the applicant to the itemised pay records provided for Mr Zhou and Ms Yuan at folios 30 – 45 of the Department’s file. The Tribunal noted that the records indicate the hours of work for each fortnight, the hourly rate, gross and net pay and AustralianSuper amounts. The Tribunal referred the applicant to one of the entries in the wage record which indicates that Mr Zhou’s hours were 70, net pay was $1136 for the fortnight ending 18 August 2013 and the amount towards superannuation, which was recorded as “AustralianSuper” was $124 or $116 for that period. The Tribunal acknowledged that the records were signed by the nominated employees for each fortnight but raised the concern that no reliable evidence has been provided to demonstrate that the nominated employees had received the net pay amounts recorded or that they held an AustralianSuper account in which the recorded amount for superannuation have been deposited. The Tribunal put to the applicant that it was concerned that these records had been contrived for the purpose of the application and are misleading and cast doubt over the reliability of documentation that has been provided.

3. In response the applicant stated that she now understands that the payslips must indicate payment and must tell the employee what tax should be deducted after she consulted with the accountant. She stated that regarding the payment of employees and reporting of tax matters they did this on a quarterly basis. As for superannuation it was paid collectively to BT Super Fund and she is not sure why they do not have the detailed records and that is why she changed to AMP. She stated that she did not pay the recorded amount for superannuation every fortnight but the amounts can be totalled up.

4. The Tribunal raised the concern with the applicant that there was a significant gap in time between superannuation payments and that most of the transfers occurred just before the application was lodged. The Tribunal also raised the concern about the lack of contemporaneous evidence which it explained makes it difficult to be satisfied that the nominated employees were in fact employed for the 12 months period before the application was made. In response, the applicant stated that she did not pay much attention to these matters and she had asked Susan if the payments, including super and tax, can be delayed and Susan told her yes. 

5. The Tribunal raised the concern with the applicant that the completed 2014 PAYG forms for the nominated employees were generate by the Company just before the application was lodged and the Tribunal may not be satisfied that these documents verify the employment and payment of wages to the nominated employees. In response, the applicant stated that she has paid it but does not know how to prove it.

6. The Tribunal asked the applicant about who actually gave the wages to the nominated employees, she stated that she did. When asked if she recalls how much she gave each employee each fortnight, the applicant stated that for Ms Yuan she got a pay rise to $18.90 so it should be $700 but she forgot how much tax should be deducted so it should be after tax. She then said for Yuan it was $800 but after tax $750 weekly. She then stated that she got the two names confused and apologised. She then stated that she was mentioning what the weekly amounts should be and that this should be doubled.

7. The Tribunal explained to the applicant that it was not asking her about what the amounts should be but about the amounts she actually gave each of the nominated employees. She stated that for Chunmain Yuan it is $3300 per month but before that it was fortnightly. The Tribunal asked the applicant if she could recall how often and much she paid the employees in the period prior to the lodgement of the application, before September 2014. In response, she stated every fortnight and she recalls it should be every other Monday but as to the specific amount she would need to calculate that. She said some employees were paid on Monday and some on Thursday, she forgot, but those two were on Monday.

8. The Tribunal took evidence from the applicant’s business partner, Susan, by telephone. She told the Tribunal that the applicant became a shareholder in September 2012. She told the Tribunal that she trained the applicant for half a year and after that her father got sick so the applicant became responsible for lodging the activity statements and was responsible for paying wages and superannuation to employees. When asked about how the workers were paid, she stated that she does not know because the applicant was responsible for this and she took care of the people in the shop and did not pay much attention.

9. The Tribunal summed up its concerns to the applicant and explained to her that the concerns raised by the delegate remained a concern for the Tribunal. It explained that there was insufficient evidence to verify the employment of the two nominated employees and, if they were employed, whether they had actually received their entitlements.

10. The representative submitted that the applicant has admitted that she got into business ill prepared and is not guilty of fraud on a massive scale. The representative was concerned about the Tribunal’s assessment of the evidence and stated that the circumstances were due to a level of disorganisation and not knowing proper procedures rather than fraudulent conduct. The representative submitted that there was a large volume of material to demonstrate the claimed employment, including worker’s compensation policies and wage records. It was submitted that the witness’ evidence should be considered and so should the applicant’s evidence, including her demeanour. The Tribunal asked the applicant if the nominated employees still worked for her, she stated that one of them did. The Tribunal noted that the employees would have had to lodge tax returns with the Australian Taxation Office (ATO) for the relevant financial years and would have been issued with Tax Assessment Notices by the ATO. The Tribunal asked the applicant to request the tax assessment notices from the employees for the relevant years as this could be considered independent verifiable evidence of the employees’ incomes for the relevant period and may support her claims about having employed them.

11. In the post hearing submissions the representative stated that the tax returns of the relevant employees are private third party information and is not something that can be provided without the express consent and cooperation of those parties and that unfortunately it has not been possible for the applicant to provide that material. It was submitted that it is clear that the applicant had deducted the necessary tax instalments from the employee’s wages and submitted those funds to the ATO in accordance with the legal obligations.

12. It was submitted that the applicant presented as a truthful and honest witness who admitted that she has been on a steep learning curve and that she has communicated with her accountant and taken steps to comply with Australia’s laws to ensure documents are properly kept. The representative submitted that there was a large volume of evidence, which when considered as a whole, shows that the applicant employed two full time employees over the relevant 12 months period.

13. The Tribunal has carefully considered all of the relevant evidence before it. The concerns raised with the applicant at the hearing about the insufficiency and unreliability of the evidence remain and, for the reasons that follow, the Tribunal has been unable to be satisfied that the nominated employees were employed for the relevant period as claimed.

14. The Tribunal has considered the PAYG statement forms completed by the Company for Ms Yuan and Mr Zhou which indicate that the nominated employees were employed for the relevant 12 months period. The Tribunal notes that these forms were generated by the Company. The Tribunal had hoped that the applicant would be able to provide the corresponding tax returns/ATO assessment notices from the nominated employees as this would have been considered independent evidence and would have assisted the applicant somewhat in at least demonstrating that the nominated employees had received the wages indicated on the PAYG Form.  The Tribunal acknowledges that such information is private third party information which requires the consent of those parties and it is, as noted by the representative, unfortunate that the applicant has been unable to obtain that information, as the Tribunal has very limited verifiable evidence before it regarding the employment of the nominated persons.

15. The Tribunal has considered the submission that the applicant had deducted the necessary tax instalments from the employees’ wages and submitted the funds to the ATO, the Tribunal accepts on the basis of the information in the itemised tax account records that payments were made to the ATO for income tax withheld, however this payment would have been in respect of all of the business’ employees, which the applicant indicated were many with 8 or 9 being regular. The Tribunal is not satisfied that the applicant’s payment of tax withheld from employees satisfactorily establishes the employment of the nominated employees for the period of 12 months before the application was made.

16. The Tribunal acknowledges that the amounts indicated for gross wages in the 2014 PAYG for the Company ($286,406) is consistent with the amounts on the total amounts of the 8 PAYG individual summaries, however, the Tribunal notes that all of those forms, which were dated in August 2014, were generated by the Company in August 2014 – which was just prior to the lodgement of the visa application in September 2014, and given the lack of independent contemporaneous evidence demonstrating the regular payments of these wages in the 2013/2014 financial year, the Tribunal is unable to give the PAYG documents much weight.

17. The Tribunal has considered the pay records document itemising information regarding the employment of the two nominated employees, including their fortnightly hours of work, pay and superannuation payments. For the reasons explained to the applicant at the hearing which are set out above, the Tribunal does not consider that document be reliable. The applicant has not explained why the pay records refer to AustralianSuper and no evidence has been provided suggesting that the employees had a superannuation account with AustralianSuper in which the recorded amounts were deposited. The Tribunal has considered the applicant’s response that she reported tax matters on a quarterly basis and that superannuation was paid collectively to the BT Super Fund. The Tribunal acknowledges that the applicant lodged quarterly activity statements, albeit later than required by the ATO, however these statements only specify the total wages/salaries paid and tax withheld and do not assist the Tribunal in ascertaining whether the fortnightly salary amounts recorded on the pay records had in fact been received by the nominated employees .

18. As for the superannuation amounts, the Tribunal has had regard to the Transaction History provided in respect of Ms Yuan which shows that she had a BT Super for Life Account in which funds were deposited in 2013, 2014 and 2015. Employers are required to pay superannuation on a quarterly basis, in respect of Ms Yuan however the superannuation contributions appear to have been made annually. The Tribunal accepts that superannuation payments were made for Ms Yuan, with the first payment of $2103 having been made on 31 October 2013. When calculated based on the basis of minimum superannuation guarantee rate of 9% for the 2012/2013 financial year, $2103 would have been in respect of a salary/wages totalling $23,376. However, it is not clear on the evidence before the Tribunal which period of time this contributions covers.  The contribution amounts for Ms Yuan on 3 September 2014 and 12 September 2014 were $2272 and $700 respectively, this totals to $2,972. When calculated based on the basis of minimum superannuation guarantee rate of 9.25% for the 2013/2014 financial year, $2972 would have been in respect of a salary/wages totalling $32,129. There is limited supporting evidence regarding which period these contribution amounts cover, though the Tribunal acknowledges that the contributions made in September 2014 appear to be roughly consistent with annual salary amount in the employment contract for Ms Yuan. Given the limited evidence regarding which period of time the various contributions cover, it is difficult to ascertain whether the amounts recorded on the pay records under ‘AustralianSuper’ total to the contributions made to the BT Super for Life Account as claimed by the applicant at the hearing.

19. Even accepting that the superannuation contributions for Ms Yuan in September 2014 were consistent with the annual salary noted on the employment contract for Ms Yuan, the Tribunal notes that these payments were made in the weeks before the application was lodged and do not necessarily prove that Ms Yuan was employed on a full time basis for the period of 12 months immediately before the application was made. There is limited contemporaneous verifiable evidence about the wages/salary received by Ms Yuan throughout the relevant 12 months period. The evidence regarding the superannuation contributions made by the business in respect of Ms Yuan, even when considered in combination with other evidence, including the employment contract, PAYG forms issued by the business and the applicant’s oral evidence, do not in the Tribunal’s view satisfactorily demonstrate that Ms Yuan was employed on a full time basis by the business for the 12 months period immediately before the application was made. 

20. The Tribunal has also considered the evidence provided in relation to superannuation contributions for Mr Zhou. The applicant provided a document and corresponding bank statement for the business indicating the transfer of $2768 to “BT Super for Life SG – By Junxin Zhou by B-Pay on 10 September 2014. However, no corresponding documents have been provided to demonstrate that Mr Zhou has a BT Superannuation account and that the amount transferred was credited to that account. There is also limited evidence regarding the period for which the contribution covers so the Tribunal is unable to determine if, as claimed by the applicant, the amount paid for superannuation is the total of the amounts noted on the pay records. The Tribunal considers that the evidence regarding the payment made to BT Super for Life noting Mr Zhou’s name, even when considered in combination with other documentary evidence such as the employment contract and PAYG form for Mr Zhou, does not satisfactorily demonstrate that Mr Zhou was employed by the business for the period of 12 months immediately before the application was made. 

21. The Tribunal has considered the other supporting documents provided including, but not limited to, the financial statements and activity statements for the corresponding periods which note the business’ expenses for wages and superannuation and worker’s compensation policy documents however these documents merely demonstrate that the applicant has workers for whom it pays wages, tax and other payments. The documents do not overcome the concerns identified by the Tribunal regarding the claimed employment of Ms Yuan and Mr Zhou and nor do they establish, even when considered with other evidence, that the business had employed the equivalent of two full time Australians in the 12 months immediately before the application was made.

22. The Tribunal has also considered the employment contracts for Mr Zhou and Ms Yuan, the handwritten entries of hours against their names and other employee’s names and organisational chart noting their names, however, given the concerns raised elsewhere in this decision and the limited contemporaneous verifiable evidence before the Tribunal in respect of their employment, the Tribunal gives limited weight to these documents.  

23. The Tribunal has also considered the applicant and the witness’ evidence and the representative’s submission that the applicant is a credible person whose evidence should be considered in combination with the witness’ evidence and documentary material. The Tribunal had the opportunity to query the applicant at the hearing about the employment Ms Yuan and Mr Zhou, and while it acknowledges her assertion that they were employed by the business, when asked to provide details about how much and how often they were paid her responses, in the Tribunal’s view, were hesitant, confused and unpersuasive. For example, in her responses she gave evidence about what the employees should have been paid and when asked about the actual cash amounts she gave the employees each fortnight she referred to the hourly rate and indicated that she would have to calculate it. The Tribunal considers that if Ms Yuan and Mr Zhou were getting paid by the applicant a regular cash in hand salary each fortnight as indicated by the contract of employment and pay records, then the applicant would have been able to recall with some accuracy the amounts given to the nominated employees. The Tribunal acknowledges that the applicant had also indicated that Ms Yuan sometimes got her payments earlier than arranged and that she realised after talking to the accountant she should deduct tax, however, this evidence does not reflect the information in the pay records and adds to the Tribunal’s earlier stated concerns about the reliability of that document. The Tribunal is not satisfied that the applicant’s oral evidence, even when considered with the other evidence before the Tribunal, demonstrates that the nominated employees were employed full time for the period of 12 months before the application was made.

24. As for Susan’s evidence, while it supported the applicant’s evidence that after a period of training the applicant assumed management of the business, including paying the workers, Susan’s evidence indicates that she was not privy to how the workers were actually paid by the applicant. The evidence, of the applicant and Susan, suggests that Susan had transitioned out of the management role 6 months after the applicant joined in September 2012, so it is plausible that Susan may not have had actual knowledge about how the applicant paid the workers. The Tribunal considers that Susan’s evidence in that regard is neutral, as it neither assisted nor contradicted the applicant’s claims about the employment of Ms Yuan and Mr Zhou and how they were paid. The Tribunal considers that Susan’s evidence is of limited assistance in this case.

25. The Tribunal has also had regard to the submissions that there are differences between operating a business in Australian and China. It has also had regard to the applicant’s claim that she relied on her business partner and to the submission, and supporting documents, indicating that she has now made efforts to comply with obligations and keep records. These factors however do not overcome the concerns of the Tribunal regarding the concerns and deficiencies in the evidence in respect of the nominated employees for the relevant period. As noted at the hearing, the applicant travelled to Australia as the holder of a provisional visa and invested in the business so as to qualify for the permanent business visa. In the circumstances, the onus was on the applicant to seek independent advice about her obligations, about the visa requirements and about records she should keep to demonstrate that she met the requirements. The paucity of contemporaneous verifiable records has left the Tribunal unable to be satisfied that the nominated employees were employed on a full time basis by the business for the period of 12 months immediately before the application was made.

1. The Tribunal has carefully considered all of the relevant evidence before it but has been unable to be satisfied that the main business, in the period of 12 months ending immediately before the application is made, provided an employee, or employees (who were Australian citizens, Australian permanent residents or New Zealand passport holders) with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 2 full-time employees over that period of 12 months. The Tribunal is accordingly not satisfied that the applicant meets cl.890.214.

2. The secondary applicants applied on the basis of being members of the family unit of the first named applicant. There is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary criteria for the grant of the visa. Given the Tribunal’s findings that the first named applicant does not meet on of the requirements for the grant of the visa, it follows that the Tribunal is not satisfied that the secondary applicants meet cl.890.311 because they are not members of the family unit of a person who satisfies the primary criteria for the visa. The Tribunal must therefore affirm the decision in respect of the secondary applicants.

3. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that she meets the requirements for any of the other visa subclasses in Class DF.

   DECISION

4. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) Subclass 890 visas.

   R. Skaros
   Member