M.Z.M International Pty Ltd (Migration)

[2022] AATA 4758

M.Z.M International Pty Ltd (Migration) [2022] AATA 4758 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  M.Z.M International Pty Ltd

REPRESENTATIVE:  Mr Steven Xiang Feng Wang (MARN: 0637238)

CASE NUMBER:  1916627

HOME AFFAIRS REFERENCE(S):          BCC2017/4091543

MEMBER:Stephen Witts

DATE:19 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2022 at 8:18am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Massage Therapist – term of employment – financial capacity – employment contract – genuine effort to employ local labour – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), 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 7 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 3 November 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 to work in the nominated occupation of massage therapist ANZSCO code 411611.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d) of the Regulations because the delegate was not satisfied that the nominator would be able to employ the nominee on a full-time basis for two years.

5. The applicant, Ms Miao Zhang, MZM International Pty Ltd, appeared before the Tribunal on 18 October 2022 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the nominee, Ms Chien-Wen Liu.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

12. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision where it is asserted that it was not satisfied that the nominator would be able to employ the nominee on a full-time basis for two years on an annual base salary of $54,000 a year. In its decision the delegate stated that the nominator says that it operates three massage therapy centres in Ballarat in regional Victoria and that the business was established in 2012 and employs 14 people including three Australian citizen employees and 11 temporary visa holders. According to the delegate it also assessed the financial information that was provided noting it was insufficient; and it was also noted that the business made a net profit of $50 in 2015 and $100 in 2016 and that the financial viability of the organisation was doubtful. It was further stated by the delegate that the evidence provided did not indicate total expenditure or expenses for the periods assessed and that the delegate doubted that the company would be able to employ the nominee as stated by the applicant.

13. The Tribunal notes that the applicant has provided it with information prior to the hearing including ASIC registration material, financial statements, an organisation chart, a position description, employment contracts, labour market testing material, and other material.

14. The Tribunal notes information provided that the company was registered in July 2012 and that it’s ACN number is 159605777 and that its director is Ms Miao Zhang.

15. The Tribunal notes that financial information was provided indicating that for the June 2022 financial year the total income for the business was approximately $180,000, that its wages were not delineated, and that it made a loss of approximately $98,000. In the previous financial year to June 2021, it was stated that it had a total income of approximately $300,000, wages of approximately $53,000, and a loss of approximately $8000.

16. The Tribunal notes that in the organisation chart provided it was indicated that there was a director in the business as stated above and that there were two parlours, and that one parlour had the director is a full-time therapist, vacancies for other therapists and three casuals; and that the other parlour listed the nominee as a therapist noting that it was currently vacant, the director again, and three casuals.

17. The Tribunal notes that a “contract of employment” was provided under the heading of “Rejuvenation Treatment Centre” for the nominee dated 18 October 2017. This material was a generic document stating that there will be a two-year employment contract commencing from 25 April 2016 and that the salary is $54,000 per annum. Also included was another copy of an identical employment contract for another individual, Ms Guangwei Li.

18. The Tribunal notes that a position description, as above, was provided for a massage therapist in the business stating that a diploma level qualification in remedial massage or equivalent degree or three years working experience is necessary and duties will include supervising other trainees and practitioners, demonstrating massage techniques to trainees, assessing client requirements, undertaking soft tissue massage, applying massage therapy and advice, recording client information, and travelling and working between different stores.

19. The Tribunal notes it also provided was a letter from Australian Border Force dated 12 November 2018 in the form of an illegal worker warning notice addressed to the nominator stating that the purpose of the letter was to give notice that a delegate of the Minister for Home Affairs is considering taking action in relation to the sponsor.

20. The Tribunal notes that a statement was provided from the applicant stating that she owns three massage parlours in Ballarat, that the business is in constant need of qualified staff, that she still has to work long hours in the parlour, that she has two children and that she lacks staff in the business.

21. The Tribunal notes that also provided was a “Statement about the genuine attempts to recruit locally” document stating that the applicant has been constantly short of qualified staff since the business began, that it had tried to recruit local staff, that it did advertise job vacancies in the local press and on job websites with 8 enquiries initially but that the business could not attract full-time employees in its location and that it needs full-time employees in particular on weekends and after normal work times.

22. The Tribunal further notes that the applicant provided it with a submission prior to the hearing stating that the company has sufficient financial capability, that it is now restructuring and planning for further expansion, that on 1 August 2022 the new company director was Mr Huang, and that he is a nutritionist and Australian registered nurse who is undertaking marketing, promotion, and contacting doctors and nurses and wants to expand and enhance the company in the future and make it a centre for diagnosis and treatment including providing radiography and physical therapy services. It was also stated that the applicant is no longer a director of the business but is in charge of store operations in a transition period with the new director, that she is completing an MBA, that she owns four properties suitable as clinic sites and provided information in regard to her stated financial capacity indicating that in the nine years since 2013 the company has made a profit of approximately $10,000 in 2013, $30,000 in 2014, $4000 in 2015, $100 in 2016, $4000 in 2017, $17,000 in 2018, $30,000 in 2019, $90,000 in 2020 despite multiple lockdowns, and $20,000 in 2021.

23. The Tribunal also notes that prior to the hearing a statutory declaration dated 17 October 2022 was provided by the new director of the business stating that he “recognise the former director Miao Zhang decision about employer sponsorship for Chien-wen Liu. I authorise Miao Zhang attend the hearing and make decisions on behalf of me in the company”. 

24. The Tribunal notes that the definition for the duties and responsibly is of a massage therapist under ANZSCO code 411611 include:

    ·“massaging the soft tissues of the body, such as muscles, tendons and ligaments, to assist healing

    ·utilising a range of massage techniques to enhance sports performance and prevent injury

    ·administering treatments to promote relaxation, improve circulation and relieve muscle tension

    ·assessing and treating specific soft tissue dysfunction and providing rehabilitation advice

    ·employing other techniques, such as acupressure or Shiatsu, and complementary aids, such as infra-red lamps, wet compresses, ice, essential oils and herbal and mineral therapies, to assist recovery

    ·assessing client's physical condition and case history and advising on stretching exercises and relaxation techniques”

25. At the hearing the Tribunal had discussion with the parties about the application.

26. The nominator stated that she first employed the nominee in April 2016 after the nominee responded to a job advertisement and that she worked in the business on a full-time basis until July 2019 when she went back to her home country of Taiwan for her sister’s wedding and for the spring festival initially on annual leave but then she ceased formal employment with the nominator sometime early after that because of the pandemic lockdown. She stated that the nominee worked for her for approximately three years as a remedial therapist usually in one location, in Shop two. She stated that she worked for five days a week.

27. She stated that the decision made by the Department did not adequately consider the growth of the company over the last few years and that she invested money in the business and that the income from the business has been increasing particularly since 2016 upon the initial employment of the nominee. It was stated that business decreased because of the compulsory lockdowns but that the business is profitable and that the delegate mistakenly focused on out-of-date financial information and did not focus on the relationship between expenditure in the business and its income which was increasing. She stated that it is common for a business in its early stages not to appear healthy but that she now operates three stores up from the initial one store that she first owned. She stated that the remedial massage industry has been growing as the health sector is also growing during the post pandemic era and with an ageing population and that people are paying more attention to their health, and that since 2019 when the nominee left up until 2022 there has been a lot of customers asking for her services. She stated that the focus should have been on the strategy of the business over the last few years rather than looking at one or two years of profitability. She stated that she has sponsored three other temporary visa holders back in 2012 and 2013 and that they worked for her for approximately three years during that time.

28. The nominee stated that she first came to Australia on a working holiday visa in 2012 living initially in Shepparton and that she then received another working holiday visa before obtaining a student visa where she studied for and completed a certificate IV level qualification in massage and also a diploma level qualification in remedial massage. She stated that she first worked in the Melbourne CBD in a beauty parlour before responding to a job advertisement placed by the business that she was successful in obtaining.

29. The Tribunal had a detailed discussion with the parties regarding the financial status of the business and of other issues noting the financial history of the business, its marginal profitability as indicated above, some possible contradictions in the information presented, and how the business has evolved over that time.

30. The Tribunal has considered the evidence provided by the applicant very carefully and is concerned that the evidence does indicate that the business has had a number of financial challenges apart from the compulsory closedown periods; and notes also that the nominee has not worked in the business now for some three years. The Tribunal also had a detailed discussion with the nominator regarding efforts to employ local labour and is also concerned as to whether the nominator has made a genuine effort to employ local labour despite her protestations to the contrary noting also the current change of management which may also affect the pathway of the business over the next two years.

31. The Tribunal after careful consideration finds that the business has not established that it has the financial capacity as reflected in the financial material provided, which indicates the business performing in a marginal capacity for some time despite some recent improvement including some severe losses over the years, to re-employ the nominee who has now been overseas for some years, in the position of remedial massage therapist for at least another two years on a salary of $54,000 per annum.

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

32. 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.

33. As above the Tribunal has considered the evidence very carefully and finds that the nominator has not established that it can employ the nominee in the nominated position of massage therapist for at least two years.

34. Accordingly, the requirement in reg 5.19(4)(d) is not met.

35. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Stephen Witts
    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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).