JL Investment Group Pty Ltd (Migration) - [2021] AATA 330

JL Investment Group Pty Ltd (Migration) [2021] AATA 330 (4 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JL Investment Group Pty Ltd
CASE NUMBER:  1821390
HOME AFFAIRS REFERENCE(S):          BCC2017/2154620
MEMBER:De-Anne Kelly
DATE:4 January 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 04 January 2021 at 1:22pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition – ANZSCO 221111 Accountant (General) – tasks to be performed in the nominated position do not correspond to the tasks of the occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, r 5.19
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 Home Affairs on 9 July 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).
The applicant applied for approval on 19 June 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because the applicant failed to demonstrate that they fulfilled the commitments toward meeting training benchmarks and it was not reasonable to disregard this and find that the applicant met r.5.19(3)(f)(ii).
The applicant appeared before the Tribunal on 8 September 2020 to give evidence and present arguments. At the request of the registered migration agent this was a multiple hearing of two employer nomination refusal reviews for the applicant being case numbers 1808862 and 1821390 and the related visa application refusal reviews being respectively case numbers 1816834 and 1824750. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
A second hearing was held on 19 November 2020.
The applicant was represented in relation to the review by its registered migration agent Mr Joel McComber MARN: 1793340 of Sentry Law, Brisbane Qld 4000 who was appointed shortly before the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 330
Decision Date: 4 January 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by JL Investment Group Pty Ltd for approval of a nomination for a Temporary Residence Transition visa stream. The dispute centred on whether the nominated position of ANZSCO 221111 Accountant (General) met the requirements of Regulation 5.19(3) of the Migration Regulations 1994. The company, which imports and distributes furniture, sought to nominate Ms Chunjiao Ren for this position.

The primary legal issue before the Tribunal was to determine if the applicant company had satisfied all the requirements for the approval of the nomination under the Temporary Residence Transition stream. This involved assessing whether the nominated occupation corresponded to the duties performed by the nominee and whether the company met its obligations as a nominator, including its operational status and compliance with employment and training commitments. The Tribunal also considered the structure of the company and the reporting lines within its organisation chart.

The Tribunal's reasoning focused on Regulation 5.19(3), which outlines the criteria for approving a nomination. It was found that the tasks described in the position description and the organisational chart did not align with the standard duties of an Accountant (General) as defined by ANZSCO. Specifically, the nominee's position had no reporting staff and no one reporting to them, suggesting a role that was not consistent with the typical responsibilities of an accountant within a business of that size. The Tribunal concluded that the applicant had not demonstrated that the nominated position's duties corresponded to the ANZSCO occupation code.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. As the applicant had not satisfied the requirements of Regulation 5.19(3), the nomination could not be approved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 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. Since the hearings were combined and to ensure a fair and just consideration of all the evidence the Tribunal has cross referenced all of the supporting evidence and ensured that all documents whether provided for one or the other of the applications have been collated and considered for both cases. Ms Tina Tian, the Executive Officer represented the company at the hearing. The business imports and distributes furniture to the wholesale sector from an address in Banyo, Qld 4014 and commenced operation in 2012. The application states it has 11 Australian employees and three foreign skilled employees. The directors of the company are Mr Tao Wang and the nominee, and they are equal shareholders. On 9 June 2017, the applicant JL Investment Group Pty Ltd trading as Ridgeway Furniture in Banyo, Qld 4014 lodged an Employer nomination – visa Subclass 186 application in the Temporary Residence Transition nomination stream for the position of ANZSCO 221111 Accountant (General) on $58,000 in favour of Ms Chunjiao Ren. Documents including the following were submitted;1)Online application - 4671448] CLD201720850307 - System Generated PDF File-EGOEXMJSOP_application.pdf-ENS-NOM.2)Acknowledgement of nomination application dated 19 June 2017.3)Leave record for the nominee dated 6 March 2017.4)Financial statements for the year ended 30 June 2016.5)Certificates of commitment to training.6)Tax receipts for training, including one dated 4 June 2014 from Vision Accounting for a five day course of MYOB day-to-day processes delivered to Yuk Yee Tang.7)Statement of employment regarding the nominee dated 2017.8)Position description.9)Payroll activity 2015 to 2016; 2016 to 2017 and 2007 to 2018.10)Pay scale markets salary analysis.11)Employment contract for the nominee dated 20 March 2014 and 1 March 2017 both signed by both the applicant and nominee and with a job description as follows:·serve the Company faithfully and diligently and at all times act in the best interest of our Business;·devote the whole of your working time, attention and ability to the Company;·use your best endeavours to protect, develop and promote the Company’s reputation and Business; and·give effect to the directions and instructions from time to time given by the directors of the Company.·Have the expertise and qualifications necessary to perform your duties and will perform them to a standard appropriate to a person having that expertise and qualifications. You must maintain that expertise and qualifications.12)Letter advising nominee’s wage increase to $58,000 dated June 2017.13)Submissions from legal firm dated 19 June 2017 on 14 May 2018.14)Request for more information from the Department of Home affairs dated April 2018.15)BAS 2016; 2017; 2018.16)ASIC registration 2018.17)Bank statements 2017; 2018.18)Financial statements to 30 June 2017.19)Passports and evidence of Australian citizenship for employees.20)Organisation chart dated 2018 showing the Director Mr Wang; the Executive Officer Ms Tian and then six employees on the same senior level namely the Office Manager; Accountant; Management Consultant; Accountant (the nominee); Finance Officer and Administration/Reception. Under the Office Manager is shown the Warehouse Manager; Truck Driver and warehouse staff. Under the Management Consultant is an IT position. There are no positions reporting to the nominee nor are there any positions under the nominee.21)Company tax return 2017.22)ABN registration.23)PAYG payment summary for the nominee for FY 2016; 2017.24)Notice of decision nomination refusal dated 9 July 2018.25)Submission from the registered migration agent dated 1 September 2020 stating that: ‘In relation to criteria (d): a) both Mr Zhu and Ms Ren will be employed on a full‑time basis in the position for at least 2 years.’26)Letter from registered migration agent dated 10 September 2020 regarding the nominee’s work as an accountant.27)Integrated client account history.28)Statutory declaration dated 9 September 2020 from Miss Tian.29)Letter dated 9 September 2020 from Q&T accountants regarding the services to the applicant.30)Letter dated 9 October 2020 from the Tribunal inviting comment on the profit and loss for FY 2020.31)Letter dated 19 October 2020 from the registered migration agent advising a profit of $35,531 in FY 2020.32)Notice of decision and nomination refusal notice dated 9 July 2018.33)Range of documents relating to the training requirements.34)Profit and Loss Statement for FY 2020.35)Print out of bank balance statements.36)Letter dated 1 September 2020 from the registered migration agent requesting that all four applications be set down for hearing on the same day.37)Request for the second hearing scheduled for the afternoon of 19 November 2020 to be rescheduled.38)Response from the Tribunal rescheduling the hearing to the morning of 19 November 2020.Documents including the following were provided after the second hearing:39)Letter dated 3 December 2020 from the registered migration agent detailing the financial documents provided.40)Bank statements from 1 July 2019 to 30 October 2020.41)Bank statement for the cash reserve.42)Integrated Client account for 1 September to 25 November 2020.43)Letter from the Australian Taxation Office (ATO) regarding payment plan.44)PAYG report for FY 2020 showing the nominee paid gross wages of $17,846 for FY 2020.45)Draft financial report; profit and loss and balance report for FY 2020.46)Aged receivables and backorder sales report as at 19 November 2020.47)Statutory declaration from Mr Wang regarding financial status of the company and the capacity of the company to pay the nominee.Adjournments and postponements

Decision

Reasons for decision

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 The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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); andNote 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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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); andNote 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.