MACROLINK & LANDREAM AUSTRALIA LAND P/L (Migration)

MACROLINK & LANDREAM AUSTRALIA LAND P/L (Migration) [2020] AATA 5879 (3 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MACROLINK & LANDREAM AUSTRALIA LAND P/L
CASE NUMBER:  1804241
HOME AFFAIRS REFERENCE(S):          BCC2016/2538434
MEMBER:Antonio Dronjic
DATE:3 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 03 December 2020 at 11:18am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Corporate General Manager – term of employment – joint venture property developer – 95% of residences already sold – no evidence the nominator entered into new projects – adverse information – satisfactory record of law compliance – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), 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 7 February 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 1 August 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 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 Direct Entry nomination stream. The nomination business is Macrolink & Landream Australia Land Pty Ltd (hereafter referred to as MLAL, the applicant or the nominator) trading under the business name of Macrolink & Landream Australia Land. The nominee is Mr Yunpeng Gao and the nominated occupation is Corporate General Manager (ANZSCO 111211).
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied on the evidence presented that the nominator will provide the employee with full-time employment for at least 2 years.
The applicant applied to the Tribunal on 19 February 2018 and with the application submitted a copy of the primary decision record. On 29 July 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(4).
On 19 August 2020, after the applicant was granted an extension of time to provide information in writing requested in the Tribunal’s letter, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 2 September 2020, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 24 September 2020. With its hearing invitation letter, the Tribunal requested the applicant provide additional documentary evidence.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant consented to holding the hearing by video conferencing.
Mr Xiaoyang Shen, who is MLAL’s director, appeared on behalf of the nominating business before the Tribunal on 24 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yunpeng Gao, the nominee who is also the nominator’s general manager. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
At the commencement of the hearing, the Tribunal noted that none of the documents requested with its hearing invitation letter were provided. The applicant’s representative stated that additional legal submissions and documentary evidence was submitted to the Tribunal on 18 September 2020. The representative forwarded a copy of his email of 18 September 2020 to the Tribunal and the hearing was adjourned for one hour. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
In his evidence Mr Shen stated that he is not employed by the nominating business and that, as MLAL’s director, he does not receive salary, does not take profit from the business until the project is completed and is not paid director’s fees.
The MLAL was incorporated in January 2016 as a joint venture property developer. The most recent residential development project undertaken by the nominator is ‘Opera Residences’. The project is a residential complex containing 104 apartments, a carpark and four retail areas. It was submitted that 95% of the complex was sold out. It was further submitted that this project had achieved the highest average selling price of all new apartments in Australia in 2016 with an average price of $54,000 for square metre. The construction commenced in April 2017 and the completion of work is scheduled for March 2021.
Company shares are held by Landream Sydney Pty Ltd (20%) and Macrolink Australia Investment Limited (80%). The company directors are Mr Yongping Gou, Mr Yunpeng Gao (the nominee) and Mr Shen.
Landream Sydney Pty Ltd was incorporated in December 2015 and its registered office is in Melbourne. This entity is a trustee of the Landream Sydney Unit Trust. Mr Shen is director and shareholder (20%) of this company together with Mr Shu Li who holds 80% of the company’s shares. They are also beneficiaries of the Unit Trust. This entity has invested the amount of $19,000,000 by way of loan into a joint venture company, MLAL. According to Mr Shen’s evidence this loan is payable in July 2021.
Macrolink Australia Investment Limited is a legal entity registered at Virgin Islands and, according to Mr Shen’s evidence, this entity is a subsidiary of Macrolink Real Estate China (a Hong Kong based company). The Tribunal does not have information regarding shareholding or directorship related to either Macrolink Australia Investment Limited or Macrolink Real Estate China. Macrolink Australia Investment Limited has invested by way of loan the amount of $75,282,000 into a joint venture company, MLAL. According to Mr Shen’s evidence, this loan is payable in July 2021.
It was submitted that the ultimate holding company is Macrolink Holdings Ltd, one of the top 500 Chinese companies registered in mainland China. It was also submitted that the ultimate holding company is Cheung Shek Investment Ltd.
The Tribunal noted that another company was registered in April 2016 in Sydney – Macrolink Australia Development Pty Ltd. Directors of this company are Mr Yunpeng Gao, Lin Zeng and Yongping Guo. The Wealth Venture Asia Ltd (registered at British Indian Ocean Territory) is sole shareholder of this company. The Tribunal does not have information regarding shareholding or directorship related to Wealth Venture Asia Ltd.
The Tribunal observed that another company, Macrolink International Land Ltd is mentioned in the financial documents as a company which advanced a loan to MLAL.
Finally, the Tribunal noted that the applicant has provided evidence that the nominee’s salary was paid by Macrolink Culturaltainment Development Co Ltd.
Mr Shen conceded that the business structure is complex and undertook to provide a detailed explanation in writing as to what is the connection between MLAL and above-mentioned entities.
He stated that MLAL employs nine employees including the nominee. The employees’ salaries are paid by bank transfers of wages into their nominating bank account. In addition to salaries, all employees are paid superannuation contributions.
The Tribunal noted that, according to the employment agreement between the MLAL and the nominee, his annual salary is set to $190,000 not including superannuation contributions. However, according to the nominee’s ATO tax assessment notice as of 30 June 2020, his gross income was $143,721. The Tribunal invited Mr Shen to explain the discrepancy in the above figures.
Mr Shen stated that, to the best of his knowledge, the amount of $143,721 represents a bonus paid to the nominee by an overseas company Macrolink Culturaltainment Development Co Ltd, registered in Beijing, China.
In his evidence, Mr Gao stated that he commenced full-time employment at MLAL in 2016 and that ever since that time, his salary was paid to his bank account in China by Macrolink Culturaltainment Development Co Ltd and not MLAL. It was only in 2019 that the bonus of $143,721 was paid by the overseas company into Mr Gao’s Australian bank account. His salary continues to be paid by Macrolink Culturaltainment Development Co Ltd into his Chinese bank account. Mr Gao gave evidence that he did not pay any income tax in Australia since 2016, when he commenced employment at MLAL.
The Tribunal enquired as to whether MLAL paid mandatory superannuation contributions to the nominee. Mr Gao stated that the nominator commenced paying superannuation contributions in early 2019. He undertook to provide a copy of his superannuation account statements. He added that from July 2020, he started receiving a salary from MLAL.
Mr Shen have evidence that there is an agreement between the nominator and Macrolink Culturaltainment Development Co Ltd according to which the nominator will repay the Chinese company money they paid for the nominee’s salary once the Opera Residences project is completed.
The Tribunal raised the additional issue with the applicant that r.5.19(4)(g) requires that the applicant 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. The Tribunal observed that non-payment of salary or mandatory superannuation contributions to the nominee from 2016 to 2019 may be in breach of those laws.
Mr Shen undertook to provide a detailed explanation in writing of the relationship between the nominator and Macrolink Culturaltainment Development Co Ltd. The applicant’s representative undertook to provide legal submissions addressing r.5.19(4)(f) and r.5.19(4)(g).
Mr Shen stated that all other MLAL employees (except for Mr Gao) are paid both their salaries and superannuation contributions by the nominator in Australia.
The Tribunal observed that according to MLAL’s tax return from 1 January 2019 to 31 December 2019, the accumulated losses from 2016 to 31 December 2019 was $48,643,967. The Tribunal further noted that according to the nominator’s profit and loss statements from 1 January 2020 to 31 July 2020, the loss for this period was over $2,000,000.
Mr Shen conceded in his evidence that ever since it commenced its operations in Australia, the nominator traded at a loss. He gave evidence that the nominator has substantial cash reserves and has undertaken to check the balance on the nominator’s bank account and provide the figures to the Tribunal.
The Tribunal noted that, apart from the income generated from interest, the nominator did not generate any income since it was established. This continues to be the case in 2020.
Mr Shen explained the business model. Several (local and overseas) investors would identify the building development project, targeting the top end of the residential and commercial properties in Sydney. The investors would then form a joint venture company which will implement the development project. Once the property is developed and apartments or commercial property sold, the joint venture company would either enter another development project or cease to exist. If a joint venture company develops a brand name, the investors may decide that a joint venture company will continue to operate.
Ms Shen reiterated that 95% of Opera Residences development was sold out. However, the sale of four retail areas is conditional upon MLAL securing the lease of those premises. He added that because of the COVID-19 implications, the nominator is still unable to secure leases for those retail premises. He further stated that because of COVID-19 restrictions imposed by the Government, Opera Residences development is still under construction and it is anticipated that the construction work will be delayed by approximately two weeks.
The Tribunal enquired what will happen with MLAL after the Opera Residences project is completed in March 2021 and why the company needs a full-time corporate manager after that time. Mr Shen stated that the nominator is currently negotiating three more development projects in Sydney. At this stage, MLAL did not purchase additional development sites or sign any development contracts. Mr Shan is hopeful that the nominator will be able to do that before the scheduled settlement for the Opera Residences project in March 2021.
The Tribunal explained the requirements of r.5.19(4)(h)(B)(i) related to the training of Australian citizens and Australian permanent residents that are specified by the Minister in the relevant instrument. The Tribunal explained that recent expenditure for Training Benchmark B is considered to be expenditure made in the previous financial year or the previous 12 months. The Tribunal acknowledged that the applicant has provided documentary evidence of training expenditure of $6,000 from December 2016 and explained why this expenditure cannot be considered as ‘recent expenditure’.
The Tribunal noted that, according to the nominator’s financial statements for the period from 1 January 2019 to 31 December 2019, the total payroll was $1,513,958. It was submitted that the nominator is seeking to satisfy the Training Benchmark B which requires recent expenditure by the business, to the equivalent of at least 1% of the payroll of the business. Accordingly, 1% of the payroll from 1 January to 31 December 2019 is $15,139.
The Tribunal further noted that, according to the profit and loss statement from January 2020 to 31 July 2020, the nominator’s training expenditure was stated to be $5,432. No training expenditure was recorded in the nominator’s financial statements for the period from 1 January 2019 to 31 December 2019.
The Tribunal pointed out that, apart from the fact that this expenditure is significantly less than 1% of the nominator’s payroll, the applicant has failed to provide documentary evidence indicating what that training was for, who attended the training and the citizenship status of those employees who attended the training.
The applicant’s representative acknowledged the deficiency and undertook to provide additional submissions and documentary evidence after the hearing. The Tribunal granted the additional time until 15 October 2020 for the applicant to provide additional submissions and documentary evidence.
On 8 October 2020, the applicant requested, and the Tribunal granted an extension of time until 28 October 2020 to provide post-hearing submissions and documentary evidence.
On 22 October 2020, the applicant’s representative wrote to the Tribunal informing it that their engagement with the applicant has been terminated on 21 October 2020.
On 28 October 2020, the applicant’s newly appointed representative, Mr David Prince of Kinslor Prince Lawyers wrote to the Tribunal seeking a further extension of time to provide post-hearing submissions and documentary evidence. The Tribunal granted an extension of time until 12 November 2020.
On 12 and 16 November 2020, the applicant’s newly appointed representative submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.
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 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)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Based on the evidence before it, the Tribunal finds that the nominator is a joint-venture company established for the purposes of developing the Opera Residences building project. This project is a residential complex containing 104 apartments, an underground carpark and four retail areas.
In his evidence, Mr Shen stated that, once the property is developed and apartments and/or commercial retail spaces sold, the joint venture company would either move to another development project or cease to exist. The settlement of the Opera Residences project is scheduled for March 2021. Mr Shen gave evidence at the hearing that 95% of the Opera Residences development was sold and that the sale of four retail areas is conditional upon MLAL securing lease of those premises.
In his submissions of 12 November 2020, the applicant’s representative stated that all five retail spaces are currently leased out. The representative further submitted that:
The proposed tenant of retail spaces on Level 4 and 5, Raw Wu Sydney Pty Ltd are close to defaulting and negotiations are ongoing with the company. If that happens, the retail sales contract will be voided, and the company will be responsible for management of the three remaining tenants and the untenanted retail spaces on level 4 and level 5 of the development. Further, while the company will not have received the purchase price from the sale of these retail spaces, they will receive the ongoing lease income from levels 4 and 5. The nominee, Mr Gao, will therefore be needed to manage those assets into the future.
Mr Gao was nominated by MLAL for full-time employment in the position of a Corporate General Manager. The nominator already employs 8 other employees including a Chief Financial Officer, Marketing and Sales Manager, Project Director and Deputy Administration and HR Director. The Tribunal is not satisfied that the nominee will be employed on a full-time basis in the position of a Corporate General Manager for at least 2 years in order to collect rent from retail premises or to ‘manage’ untenanted retail spaces into the future. Even those tasks are conditional upon the proposed tenant of retail spaces on Level 4 and 5, Raw Wu Sydney Pty Ltd defaulting on the lease agreement, which may or may not eventuate.
While the Tribunal accepts that the nominator is involved in negotiations for further projects, at the time of the Tribunal’s decision, there is no evidence that the nominator entered a new building development project. According to Mr Shen’s evidence, MLAL did not purchase additional development sites or sign any development contracts as at the time of the Tribunal’s hearing. In his submissions of 12 November 2020, the applicant’s representative submitted that the nominator is involved in ongoing negotiations for a further project at 18–40 Anderson Street, Parramatta. However, despite the undertaking to do so no further details were provided to the Tribunal.

Based on the evidence before it, the Tribunal is not satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years. Accordingly, the Tribunal finds that the applicant does not meet r.5.19(4)(d)(i) to the Regulations.
As the Tribunal finds that the applicant does not meet r.5.19(4)(d), it is not necessary to make findings as to whether the business meets r.5.19(4)(f) and (g) despite having serious concerns in this respect.
The evidence before the Tribunal is that the nominee commenced full-time employment at MLAL in 2016 and that ever since that time, his salary was paid to his bank account in China by Macrolink Culturaltainment Development Co Ltd and not the nominating business. Mr Gao gave evidence that he did not pay any income tax in Australia since 2016 when he commenced employment at MLAL. Nor was he paid superannuation contributions by the nominating business before early 2019. Despite undertaking to provide a copy of his superannuation account statements from early 2019, Mr Gao has failed to do so.
In his submissions of 13 November 2020, the applicant’s representative undertook to provide an expert international tax law advice. As of the day of the Tribunal’s decision, no such advice was provided. The Tribunal note that in his submissions, the applicant’s representative indicated that further information will be provided before a resumed hearing for this matter. The hearing in this matter was completed on 24 September 2020. The Tribunal did not receive request for another hearing, nor it gave any indication to the applicant that it intends to schedule another hearing.
The Tribunal recommends that the Department refer this matter to the Australian Taxation Office (ATO) for determination as to whether Mr Gao is considered to be an Australian resident for tax purposes, whether he was required to pay income tax in Australia and whether the nominating business, by not paying superannuation contributions to the nominee, failed to comply with the workplace relation laws of the Commonwealth, and of each State or Territory in which it operates a business.
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 the 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
The Tribunal affirms the decision under review to refuse the nomination.
Antonio Dronjic
Member
Document List – Attachment A
1.On 19 August 2020 the Applicant provided the following documents:
·Letter from the Tribunal to Miss Qin regarding ‘Invitation to Provide Information – Macrolink & Landream Australia Land P/L’ (29/7/2020)
·Cover letter from Willem B. Oostdyck (Senior Migration Agent, Christopher Levingston & Associates) to the Tribunal (19/8/2020)
·ASIC Company Summary for ‘Macrolink & Landream Australia Land Pty Ltd’
·Current and Historical Company Extract for ‘Macrolink & Landream Australia Land Pty Ltd’
·Company tax return for 2020, including electronic lodgement declaration (Form C)
·Dividend and interest schedule for 2020
·Losses schedule for 2020
·International dealings schedule 2020
·Company tax return for 2019, including electronic lodgement declaration (Form C)
·Losses schedule for 2019
·International dealings schedule 2019
·Macrolink & Landream Australia Pty Ltd Financial Statements for the Year Ended 31 December 2019
·Macrolink & Landream Australia Pty Ltd Financial Statements for the Year Ended 31 December 2018
·Activity statement for Macrolink & Landream Australia Land Pty Ltd for the periods:
oJuly 2018 – September 2018
oOctober 2018 – December 2018
oJanuary 2019 – March 2019
oApril 2019 – June 2019
oJuly 2019 – September 2019
oOctober 2019 – December 2019
oJanuary 2020
oFebruary 2020
oJanuary 2020 – March 2020
oApril 2020
oMay 2020
oApril 2020 – June 2020
·‘MLAL Organizational chart’
·Macrolink & Landream Business Plan 2020 -2022 (August 2020)
·Email correspondence
·71-79 Macquarie Street – Design Meeting 26 Minutes (15/11/2016)
·71-79 Macquarie Street – Client’s Meeting Minutes 61 (26/7/2017)
·71-79 Macquarie Street – Client’s Meeting Minutes 73 (7/3/2018)
·71-79 Macquarie Street – Client’s Meeting Minutes 73 (7/3/2018)
·PDSGROUP Construction Meeting Minutes – Project: Opera Residences 71-79 Macquarie Street, Name of Meeting: Construction Meeting (9/10/2018)
·PDSGROUP Construction Meeting Minutes – Project: Opera Residences 71-79 Macquarie Street, Name of Meeting: Client Meeting No. 21 (28/5/2019)
·PDSGROUP Construction Meeting Minutes – Project: Opera Residences 71Macquarie Street, Name of Meeting: Construction Meeting No. 15 (5/3/2019)
·
PDSGROUP Project Control Group Report No. 15, Opera Residences – 71 Macquarie St, NSW Sydney 2000

Microlink & Landream Australia Land Pty Ltd (25/2/2020)
*Note: the page immediately following the above contain the words ‘Project Control Group Report No.14 Opera Residences’ in the header. The pages thereafter contain the words ‘Project Control Group Report No.15 Opera Residences’ in the header.
·Employment Agreement between Marcolink and Landream Australia Land Pty Ltd and Mr Yunpeng Gao (signed)
·Position Description for General Manager (for Yunpeng Gao at Macrolink & Landream Australia Land Pty Ltd
·Top Education Group Pty Ltd reversed tax invoice to Macrolink & Landream Australia Pty Ltd (19/12/2016)
·1220.0 – ANZSCO – Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1 – Unit Group 1112 General Managers
·Notice of Decision, Nomination Refusal Notice for Employer Nomination (7/2/2018)
Document List – Attachment B
1.On 18 September 2020, the applicant provided the following documents:
·Cover letter from Willem B. Oostdyk (Senior Migration Agent, Christopher Levingston & Associates) to the Tribunal (18/9/2020)
·Letter from Peter Calov (Partner, Corrs Chambers Westgarth Lawyers) to the Tribunal, regarding ‘Macrolink & Landream Australia Land Pty Limited Opera Residences Pre-sale Summary’ (14/9/2020)
·Memorandum of Understanding between ‘Microlink & Landream Australia Land Pty Ltd and its related entities’ and ‘Aust & NZ International Investment Group and its related entities’
·Letter from Xiaoyang Shen (Director, Macrolink & Landream Australia Land Pty Ltd) regarding ‘Macrolink & Landream Australia Pty Ltd (ABN 55 610 040 081)’ (16/9/2020)
·Letter from Xiaoyang Shen (Director, Macrolink & Landream Australia Land Pty Ltd) regarding ‘Macrolink & Landream Australia Pty Ltd (ABN 55 610 040 081)’ (16/9/2020)
·Organisation Chart
·Notice of assessment – year ended 30 June 2020 for Yungpeng Gao
·Letter from Dan Sun (Human Resources Director, Macro Culturaltainment Development Co., Ltd) regarding Yungpeng Gao’s remuneration package of 01/01/2016-31/12/2016
·Letter from Dan Sun (Human Resources Director, Macro Culturaltainment Development Co., Ltd) regarding Yungpeng Gao’s remuneration package of 01/01/2017-31/12/2017
·Letter from Dan Sun (Human Resources Director, Macro Culturaltainment Development Co., Ltd) regarding Yungpeng Gao’s remuneration package of 01/01/2018-31/12/2018
·Letter from Dan Sun (Human Resources Director, Macro Culturaltainment Development Co., Ltd) regarding Yungpeng Gao’s remuneration package of 01/01/2019-31/12/2019
·Letter from Dan Sun (Human Resources Director, Macro Culturaltainment Development Co., Ltd) regarding Yungpeng Gao’s remuneration package of 01/01/2020-30/6/2020
·Payroll reporting – Year-to-date verification report for the payroll year 2019/20
·Payroll reporting – employee year-to-date for Qiwei, HUANG
·Payroll reporting – employee year-to-date for Matthew, BENTLEY
·Payroll reporting – employee year-to-date for Xiaofei, DOU
·Payroll reporting – employee year-to-date for Yunpeng, GAO
·Payroll reporting – employee year-to-date for Lin, ZENG
·Payroll reporting – employee year-to-date for Tinting, QIN
·Payroll reporting – employee year-to-date for Hanxi, LI
·Payroll reporting – employee year-to-date for Jian, MIAO
·Payroll reporting – employee year-to-date for Bian, WU
·Payroll reporting – employee year-to-date for Yan, HE
·Profit & Loss Statement – Marcolink & Landream Australia Land Pty Ltd for the 7 months ended 31 July 2020
Document List – Attachment C
1.On 12 November 2020 the applicant sent the following documents:
·Cover letter/submission from David Prince (Principal Solicitor, Kinslor Prince Lawyers) to the Tribunal (12/11/2020)
·An ‘Index to Annexures’
·Payroll summary 1/11/2019 – 31/10/2020
·Receipt (RCPT0712336) from TAFE NSW to Qiwei Huang (12/11/2020)
·Receipt (RCPT0711777) from TAFE NSW to Zeng Ling (12/11/2020)
·Receipt (RCPT0711881) from TAFE NSW to Tingting Qin (12/11/2020)
·Receipt (RCPT0712581) from TAFE NSW to Jian Miao (12/11/2020)
·Passport of Miao, Jian (date of issue 31/3/2017)
·Department of Home Affairs, Visa Entitlement Verification Online, Visa Details Check for Jian Miao (12/11/2020)
·Passport of Zeng, Lin (date of issue 16/8/2017)
·Department of Home Affairs, Visa Entitlement Verification Online, Visa Details Check for Lin Zeng (12/11/2020)
·Passport of Huang, Qiwei (date of issue 4/5/2010)
·Department of Home Affairs, Visa Entitlement Verification Online, Visa Details Check for Qiwei Huang (12/11/2020)
·Passport of Qin, Tingting (date of issue 12/12/2019)
·Department of Home Affairs, Visa Entitlement Verification Online, Visa Details Check for Tingting Qin (27/9/2020)
·
Letter from Adam Crowley (Director, RSM Australia Pty Ltd) to the Tribunal regarding ‘Macrolink & Landream Australia Land Pty Ltd Confirmation of Wages Paid to Employees’ (29/9/2020).

Includes; payroll activity summary for:
o   1/7/2016 – 30/6/2017
o   1/7/2017 – 30/6/2018
o   1/7/2018 – 30/6/2019
o   1/7/2019 – 30/6/2020
o   1/7/2020 – 29/9/2020
·Australian Tax Office Business Portal STP reporting; 2020-2021 financial year and 2019-2020 financial year
·Payroll reporting centre for 2020/21 payroll year and 2019/20 payroll year
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Matthew Bentley
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Yan He
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Qiwei Huang
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Hanxi Li
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Jian Miao
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Ms Tingting Qin
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Bian Wu
·Employment Agreement (Full-time) between Macrolink & Landream Australia Land Pty Ltd and Lin Zeng
·Queensland Driver Licence of Matthew John Bentley (effective 07.08.18)
·New South Wales Learner Driver Licence of Yan He (expiry date 23/6/2021)
·New South Wales Driver Licence of Qiwei Huang (expiry date 16/10/2025)
·New South Wales Photo Card of Hanxi Li
·New South Wales Driver Licence of Jian Miao (expiry date 25/7/2027)
·New South Wales Driver Licence of Tingting Qin
·New South Wales Driver Licence of Bian Wu (expiry date 18/4/2028)
·New South Wales Driver Licence Lin Zeng (expiry date 4/6/2023)
·Company group corporate structure chart
·Agreement between ‘Macrolink & Landream Australia Land Pty Ltd’ and ‘Macrolink Australia Investment Limited’ (20/12/17)
·Letter from Guanyu Hang (Director, Macrolink Australia Investment Limited) to the Tribunal (11/11/2020), including; BVI Services Commission summary of individual directors (30/9/2020) and Passport of Hang, Guanyu (date of issue 3/3/2016)
·Agreement between ‘Macrolink & Landream Australia Land Pty Ltd’ and ‘Landream Sydney Pty Ltd ATF Landream Sydney Unit Trust’
·Letter from Xiaoyang Shen (Director, Landream Sydney Pty Ltd) to the Tribunal (11/11/2020), including; InfoTrack summary for Landream Sydney Pty Ltd, ‘(creditor)watch’ Credit Report, InfoTrack document for Landream Sydney Pty Ltd, and Passport of Shen Xiaoyang (date of issue 8/6/2012)
·A$ syndicated facility agreement, Opera Residences, between Macrolink & Landream Australia Land Pty Ltd (Borrower), entities named in Schedule 1, Tasovac Pty Limited (Security Trustee), National Australia Bank Limited (Arranger), National Australia Bank Limited (Agent) (27/12/2019)
·Letter from Yongping Gou (President, Macrolink Culturaltainment Development Co Ltd) to the Tribunal (10/11/2020), including New Silkroad Culturaltainment Limited 2020 Interim Report,
·Extract of Agreement for Lease, Tenancy 1, Ground floor, 71 Macquarie Street Sydney; Macrolink & Landream Australia Land Pty Ltd, Opera Group Floor Retail Pty Ltd, including attachments
·Extract of Agreement for Lease Tenancy 2, Ground floor, 71 Macquarie Street, Sydney; Macrolink & Landream Australia Land Pty Ltd, City Essentials Circular Quay Pty Ltd, including attachments
·Extract of Agreement for Lease Retail Tenancy 3, Level 1, 71 Macquarie Street Sydney; Macrolink & Landream Australia Pty Ltd, Ippudo Australia Pty Ltd, including attachments.
·Extract of Agreement for Lease Tenancies 4 & 5, 71 Macquarie Street, Sydney; Macrolink & Landream Australia Land Pty Ltd, Raw Wu Sydney Pty Ltd, including attachments
·
Contract for the sale and purchase of land – 2017 edition

Vendor: Macrolink & Landream Australia Land Pty Limited

Purchase: Zhao’s (Australia) Pty Ltd
·Letter from Peter Calov and Taleen Karapetian (Coors Chambers Westgarth) to Macrolink and Landream Australia Land Pty Ltd, regarding ‘Retail Lot, Opera Residences – Advice in relation to the effect of COVID -19’ (2/4/2020)
2.On 16 November 2020, the applicant provided the following documents:
·Cover letter/submission (Kinslor Prince Lawyers) to the Tribunal (16/11/2020)
·Receipt from Top Education Group Pty Ltd to Macrolink & Landream Australia Pty Ltd (12/11/2020)
·Engagement letter: Corporate Training Program from Top Education Institute to Macrolink & Landream Australia Land Pty Ltd (12/11/2020)
·Passport of Matthew John Bentley (date of issue 12/3/2014)
·Passport Li, Hanxi (date of issue 4/4/2013)
·Visa Entitlement Verification Online (VEVO) Visa Details Check for Hanxi Li
·Passport of Bian Wu (date of issue 25/7/2011)
·Visa Entitlement Verification Online (VEVO) Visa Details Check for Bian Wu
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).

[2020] AATA 5879

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness