JIN HUAN LI (Migration)

[2018] AATA 1800

JIN HUAN LI (Migration) [2018] AATA 1800 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JIN HUAN LI

CASE NUMBER:  1726144

DIBP REFERENCE(S):  BCC2016/1526841

MEMBER:Mark Bishop

DATE:2 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 May 2018 at 3:19pm

CATCHWORDS
Migration – Business sponsor – Nomination approval – Insufficient evidence of capacity to meet employment obligations – Practice and procedure – Information not provided within relevant timeframe – Extension of time refused – Request for an adjournment refused – Decision under review affirmed

LEGISLATION,
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 Immigration on 5 October 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).

2. The applicant applied for approval on 22 April 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations because the nominator did not demonstrate the financial capacity to be able to pay a full time salary for the nominated position for at least 2 years.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Term of employment of the visa holder: r.5.19(4)(d)

7. 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. Clause 1.2 of the letter of engagement referred to above states the employment will be full time for a minimum ongoing period of 4 years. The letter of engagement does not contain a clause that expressly excludes the possibility of an extension.

8. The Tribunal needs to be satisfied the business is able to operate sufficiently and can afford to pay the nominee.

9. The Tribunal wrote to the nominator on 13 February 2018 requesting the provision of specific updated and current information addressing criteria in r.5.19(2) and (4) by 27 February 2018.

10. The Tribunal requested detail of  its financial position for at least the last two financial years for example, the applicant’s tax returns, financial statements prepared by a financial advisor that include a detailed profit and loss statement and balance sheet, and business activity statements lodged with the ATO for the financial years ending June 2016 and June 2017.

11. The Tribunal made a further such request on 28 February 2018 and it advised the nominator it required the material so it could consider all relevant material.

12. The nominator did not provide the information as requested.

13. On 8 March 2018 the Tribunal advised the applicant of a hearing date to consider the review application at 9.30am on 13 April 2018.

14. On 12 April 2018 the daughter of the applicant advised the Tribunal the applicant would not attend the hearing. The Tribunal advised the applicant was required to attend the hearing because of the heavy document load involved in the application. In those circumstances a phone hearing would not be appropriate. The daughter of the applicant repeated her advice the applicant would not attend the hearing.

15. On 12 April 2018 the applicant requested the Tribunal reschedule a hearing in the afternoon as it would take some time to travel from Gippsland to Melbourne. The Tribunal rescheduled the hearing to 2pm on Wednesday 2 May 2018.

16. On 13 April 2018 the Tribunal wrote to the applicant and requested the applicant provide “copies of financial reports for JINHUAN LI trading as Gippsland Asian Buffet ABN40 854 31`4 063 for the financial year 2016 and the financial year 2017”. The applicant was requested to provide the information by 27 April 2018.

17. The applicant was advised if he did not provide the information within the period allowed or as extended the Tribunal may make a decision on review without taking any further action to obtain the information.

18. The applicant did not provide the information as requested.

19. The applicant instead made a request for an extension of time. The Tribunal refused the request for an extension of time. The Tribunal advised the applicant it considered a period of 10 weeks since 13 February 2018 sufficient to obtain the information.

20. At 11.00am on 2 May 2018 (the day of the scheduled hearing) the applicant requested a postponement of the scheduled hearing. The applicant advised he had a medical condition and suffered from high blood pressure and could not travel.

21. On 30 June 2015 The President of the AAT created a Practice Direction in respect of Migration and Refugee Matters. It was expressed to have effect from 1 July 2015. Clause 7 addresses the matter of “Seeking an adjournment”.  It is repeated hereunder:

    Seeking an adjournment

    7.3If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.

    7.4 If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).

22. The applicant did not provide any supporting documentation. The applicant did not provide a medical certificate. The applicant did not provide a medical report. The applicant did not provide any detail as to his medical condition, its likely duration or when he would be able to attend a hearing. The applicant provided a document that said he had an appointment on Monday 14 May at 2pm in Sale.

23. As the request for an adjournment did not conform to the relevant practice direction, did not contain any detail as to the medical condition and was not supported by any evidence from a doctor the Tribunal advised the applicant the request for a postponement of the hearing was refused.

24. As advised to the applicant in writing on 27 April 2018 and outlined in paragraph 29 above the Tribunal proceeded to make a decision on review without taking any further action to obtain the information.

25. JINHUAN LI trading as GIPPSLAND ASIAN BUFFET provided a financial report for the FY2014 and FY2015. The financial report was unsigned, omitted the compilation report and notes and there was no indication it had been prepared by the nominator’s accountants.

26. The delegate provided a summary of material that was on the Departmental file. The Tribunal has reviewed that material.

27. The delegate made the following findings:

    ·    The business had advised the employee will be employed on a full time basis for at least 4 years at a salary of $42,000 per annum plus superannuation;

    ·    JINHUAN LI  (ABN 40 854 314 063) has been registered as a sole trader since 16 December 2005;

    ·    JINHUAN LI  (ABN 40 854 314 063) is the holder of the business name Gippsland Asian Buffet located in Sale, Victoria

    ·    JINHUAN LI is the nominator in the current review application. The nominee is Ms Lichen LE;

    ·    The applicant provided financial statements for the FY 2014/2015;

    ·    Gross profit for the FY2014 was $193,575 from trading activities. Total expenses for the same period were $156,967. Gross profit was $36,607;

    ·    Gross profit for the FY2015 was $211,385 from trading activities. Total expenses for the same period were $170,975. Gross profit was $40,409;

    ·    The business nominator had not provided the financial statements for the FY2016 so it was not possible to assess the financial capacity of the nominator to meet all the employment obligations in regard to the appointment of a cook;

    ·    The business had not provided any satisfactory evidence to demonstrate its financial capacity to meet all employment obligations in regard to employing the nominee for a period of 2 years with a salary of $42,000 per annum;

    ·    The nominator provided 2 BAS copies that had not been lodged with the ATO. The business had not provided any evidence of tax returns for the FY2014, FY2015, FY2016 and FY2017;

    ·    BAS for the quarters ended December 2016 and March 2017 showed a profit of $18,120 and $5,371 respectively. Financial statements for the FY 2017 were not provided so it was not possible to carry out a simple reconciliation;

    ·    The delegate acknowledged the business was trading marginally in profit in the FY2015. However the business had not provided satisfactory evidence to demonstrate its recent financial capacity to meet all employment obligations in regards to employing the nominee for a period of at least 2 years on a nominated annual salary of $42,000.

28. The Tribunal is not bound by the findings of the delegate and brings an independent mind to this current review application.

29. JINHUAN LI trading as GIPPSLAND ASIAN BUFFET did not submit a company tax return for the FY 2014 and FY 2015 so it was not possible to calculate the net profit. In all likelihood the tax liability would have been in the order of $5,000 to $10,000 for each year. The nominator did not submit his PAYG tax returns for the FY2014 and FY2015 so it was not possible to verify receipt of income (if any) from JINHUAN LI trading as GIPPSLAND ASIAN BUFFET.

30. JINHUAN LI trading as GIPPSLAND ASIAN BUFFET did not provide company tax returns for the FY2014, FY2015, FY2016 and FY2017 so it was not possible to determine net profit for each of the financial years. The nominator did not submit his PAYG tax returns for the FY2014, FY2015, FY2016 and FY2017 so it was not possible to verify receipt of income (if any) from JINHUAN LI trading as GIPPSLAND ASIAN BUFFET.

31. The company did not provide a statement from its accountants that it would have the ongoing financial capacity to employee the nominee at the agreed salary for a period of 2 years.

32. As outlined above the Tribunal has made repeated requests over a lengthy period to provide current financial statements so that the Tribunal can properly assess the review application. The applicant has not provided the financial statements or any other financial information.

33. The Tribunal has considered all the information in both the Departmental and Tribunal files.

34. On the basis of the evidence before the Tribunal the applicant has not demonstrated the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.

35. Accordingly, the requirement in r.5.19(4)(d)(i) is not met and the nominator does not meet regulation 5.19(4)(d).

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

    DECISION

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

    Mark Bishop
    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).