New Hong Li Pty Ltd (Migration)

New Hong Li Pty Ltd (Migration) [2019] AATA 5097 (30 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  New Hong Li Pty Ltd
CASE NUMBER:  1719412
DIBP REFERENCE(S):  BCC2017/2239833
MEMBER:Phoebe Dunn
DATE:30 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 July 2019 at 9:04am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Massage Therapist – training obligations satisfied – nominee employed full-time in relevant position before application – nominee to be employed full time for 2 years – possibility of employment extension – evidence of financial capacity provided – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 1.20DA, 2.59(h), 2.68(i), 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 Immigration on 9 August 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).
The applicant applied for approval on 25 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 (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).
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) of the Regulations because the applicant failed to provide sufficient supporting evidence that it had met either Training Benchmark A or B during the period of the Standard Business Sponsorship approval, and further that there was no claim or evidence to support disregarding these requirements under r.5.19(3)(f)(ii).
The Tribunal received an application for review on 25 August 2017.
When the application for review was made the only document provided to the Tribunal was a copy of the notification and decision record of the Department of Immigration and Border Protection (the Department).
The applicant, New Hong Li Pty Ltd trading as Tiger Therapy Chinese Massage, appeared before the Tribunal on 17 June 2019 to give evidence and present arguments, represented at the hearing by Mr Hu Tong. The Tribunal also received oral evidence from the nominee Mr Xiaowei Lan, whose related 186-visa application, Tribunal file 1723689 was heard at the same time, together with the following witnesses: Mrs Ting Chen, the wife of the nominee, Mrs Wang Qing, the applicant’s wife, and Mr Runsheng Lan, the nominee’s father. 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, Mr Frank Richter.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.
Based on the information on the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee, and the required s.245AR(1) certification.
The application for approval also identifies Mr Xiaowei Lan, the nominee, who according to Departmental records, held a Subclass 457 visa from 29 June 2015.
The occupation identified in the application is that of ‘Massage Therapist’ (ANZSCO 411611). At the hearing, the applicant and the nominee gave oral evidence about the work conducted by the nominee at the business. The nominee is the only employee qualified to conduct remedial massages. His role includes development of treatment plans for customers, and managing supplies, taking bookings and conducting remedial massage.
The Tribunal is satisfied based on the employment documents for the nominee that the occupation identified is the same occupation carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code (4116) as the occupation carried out by the nominee whilst he held a Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
Departmental records confirm that the nominator is the standard business sponsor who last identified Mr Xiaowei Lan in a nomination made under s.140GB of the Act. The standard business sponsorship was approved on 21 October 2015, for a period of three years to 21 October 2018.
The Tribunal has received current information evidencing that the applicant is actively and lawfully operating a business in Australia, including an ASIC current and historical search, financial statements and company tax returns from FY 2015 to FY 2018, the most recent business activity statements, payroll information, and the current Workcover Certificate of Currency.
At the hearing, the Tribunal received evidence from Mr Hu Tong, the Director and manager of the company, about the nature of the business and its operations. New Hong Li Pty is massage therapy business offering remedial and relaxation massage. New Hong Li. Pty Ltd has been registered as a company since 18 December 2012. It has two premises, in Eltham and Bundoora, with the nominee and his wife working primarily at the Eltham premises. It currently employs one full-time employee (the nominee) and two part-time employees (the nominee’s wife, and the applicant’s wife), as well as Mr Tong. The applicant and his wife manage the business and sometimes help-out with massages when busy, while the nominee works full time in the business as a remedial massage therapist. The nominee’s wife helps to coordinate bookings and casual staff, and occasionally performs relaxation massage at the Eltham premises when the business is busy.
The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 29 May 2015 to work in the nominated occupation of Customer Service Manager. This nomination application was lodged on 25 June 2017.
The Tribunal has considered documentary evidence, including the nominee’s current employment contract and position description, the nominee’s lodged tax returns for FY16, FY17 and FY18. The Tribunal has also considered documentary and oral evidence regarding the nominee’s position, including the nominee’s qualifications, and is satisfied that the position carried out by the nominee is that of a Massage Therapist. The Tribunal has also considered evidence of the nominee’s employment, including payroll information, and bank account deposits and is satisfied that the nominee has been employed on a full-time basis in Australia in the relevant position for at least two of the three years before the application.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
Evidence before the Tribunal includes the most recent signed employment contract in respect of the nominee dated 28 June 2019, outlining the current terms and conditions of employment, and providing for a minimum of two years of employment from the date of approval of the Subclass 186 visa, with an option to extend after that period, and no express exclusion of the possibility of extending the period of employment. The most recent contract also provides for an annual salary of $58,212.00 per annum plus superannuation at the current legislated rate. The applicant has also provided copies of the nominee’s tax returns from 2016 - 2018, which indicate that the nominee’s previous base salary was $54,500 per annum plus superannuation at the current legislated rate, in accordance with the previous contract of employment dated 20 February 2015.
The Tribunal has also had regard to the applicant’s financial capacity to employ the nominee for a period of at least two years. The Tribunal has considered updated financial records, including the 2018 financial statements, and most recent BAS statements, updated payroll information, together with oral evidence at the hearing and is satisfied that the applicant can support the employment of the nominee for at least two years.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
There is no other Australian citizen or permanent resident employed by the business who performs similar work to the employee. The applicant has provided market testing information, including the current Health Professionals and Support Services Award 2010 which indicates that the current annual base salary for a massage therapist with the same qualifications and years of experience as the nominee is $51,000 (excluding overtime and weekend rates). At the hearing, the applicant provided oral evidence of the nominee being a significant asset to the company, and is the reason he pays the applicant above the average for a role of this nature. The applicant works Monday to Friday from 9.30 – 5.00pm, with occasional overtime if busy, but does not work on weekends.
Given the above, the Tribunal is satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The applicant was most recently approved as a standard business sponsor on 21 January 2015 – 21 January 2018. The delegate refused the applicant’s nomination on the basis of lack of supporting evidence to substantiate compliance with the training commitments and obligations in r.5.19(3)(f). In submissions to the Tribunal, the applicant has sought to establish compliance with the training requirements under training Benchmark A in Schedule A of IMMI 13/030.
At the hearing, the Tribunal requested further documentary evidence regarding annual payroll and superannuation expenses, and finalised tax returns, among other things. In relation to a specific request from the tribunal to establish payment of superannuation in the FY 2015, the applicant has provided a statement from its chartered accountant dated 20 June 2019, as follows:
“Please be advised that the superannuation expense for New Hong Li Pty Ltd (ABN 78 161 700 300) for the financial year ended 30 June 2015 was paid to the Small Business Superannuation Clearing House on the 18^th November 2015. Please refer to the attached receipt issued by the Australian taxation office (ATO.
As the business uses the cash accounting method, the superannuation expense was only included in the tax return for the financial year ended 30 June 2016.”
The Tribunal has verified that the superannuation for FY 2015 was subsequently accounted for in the FY 2016 financial reports.
The financial reports, superannuation statements and payroll documents before the Tribunal indicate that the nominator’s payroll for the first financial year of the standard business sponsorship (FY 2015) was $86,982.62 (including payments to an associated person – the applicant’s wife), equating to a requirement to contribute at least $1,739.25 under training Benchmark A to an approved scheme for each year they were approved and employed a Subclass 457 visa holder, noting that this includes payments to an associated person – the applicant’s wife). In the second year of the standard business sponsorship (FY 2016) the payroll was $103.837.40, equating to a requirement to spend at least $2,076.75 under training Benchmark A, and in the third year (FY 2017) the payroll was $147,248.48, equating to a requirement to spend at least $2,944.97. In final part year of the standard business sponsorship the payroll was $143,545.92, equating to a requirement to spend at least $2,870.92.
The Tribunal has verified that the following amounts were paid to the Victoria University Foundation on 7 August 2018, an approved scheme for the purposes of Training Benchmark A: FY 2015- $1,800; FY 2016 - $3,900; FY 2017 - $2,900.00 and FY 2018 - $2,871.00. The Tribunal also notes that two further payments were made to the Victoria University Foundation in FY 2019, the first on 17 August 2018 for $360.00 and the second on 22 January 2019 for $261.00. The Tribunal notes that for the years of the standard business sponsorship, the applicant’s contributions toward meeting Training Benchmark A requirements were made after the obligations arose in each financial year, namely on 7 August 2018. However, the Tribunal accepts these payments towards meeting these obligations, as the applicant has demonstrated meeting the training obligations in full over the term of the most recently approved standard business sponsorship.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal notes that the applicant was subject to a Notice of Intention to Take Action (NOITTA) under r.2.96 relating to an incident that occurred on 8 October 2018 when Border Force Officers attended the applicant’s premises, and discovered the father of the nominee at the premises. Having regard to r.1.13A the Tribunal considers this to fall within the definition of ‘adverse information’.
The Tribunal has received extensive written and oral evidence about the circumstances giving rise to the nominee’s father being at the premises. The Tribunal understands that the nominee’s father had driven the nominee’s wife to the premises while the nominee attended to some urgent business, and was waiting at the premises until the nominee arrived as a safety precaution. When discovered by Border Force Officers, it was assumed that the nominee’s father was working at the premises, and as a consequence the father was issued a notice to cancel his visa. The Tribunal notes that the explanation for his presence at the business premises was accepted at an interview with the applicant’s father on 10 October 2018, and his visa was not cancelled.
In response to the NOITTA, the applicant acknowledged that a breach did occur, but noted that the applicant did not commit the breach, and the applicant had no knowledge of the nominee’s father being at the premises. The applicant also outlined steps taken to ensure that these circumstances do not occur again. In a subsequent Notice of Decision issued by Border Force on 12 December 2018, the applicant received a formal warning, noting that there were circumstances to bar or cancel the sponsor but that having considered the relevant criteria, no such action would be taken in the circumstances.
The Tribunal has considered extensive written and oral evidence about the circumstances giving rise to the NOITTA and subsequent measures taken by the applicant and nominee to ensure that these circumstances do not occur again. On the basis that no action was ultimately taken by Border Force to bar or cancel the applicant, and that the applicant had no knowledge of the nominee’s father being at the premises, the Tribunal considers it reasonable to disregard the adverse information in the circumstances.
The Tribunal has also received submissions from the applicant and the applicant’s accountants about monies owed to the Australian Taxation Office relating to the late lodgement of tax returns, resulting in the application of late lodgement penalties. Having regard to r.1.13A the Tribunal considers this to fall within the definition of ‘adverse information’. The Tribunal notes that all substantive payments owing to the ATO have been made, and that the applicant has applied for waiver of the penalties. Accordingly, the Tribunal considers it reasonable to disregard the adverse information in the circumstances.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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.
There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business.

Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Phoebe Dunn
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.
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); and
Note 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.

[2019] AATA 5097

30 July 2019

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Immigration

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