Newcity Development (One) Pty Ltd (Migration)

Newcity Development (One) Pty Ltd (Migration) [2023] AATA 3680 (24 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Newcity Development (One) Pty Ltd
REPRESENTATIVE:  Ms Stacey Nitchov
CASE NUMBER:  2102570
HOME AFFAIRS REFERENCE(S):          BCC2020/1708107
MEMBER:Antonio Dronjic
DATE:24 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 24 October 2023 at 5:14pm
CATCHWORDS
MIGRATION – nomination – Medium-term stream – Chief Executive or Managing Director – position associated with the nominated occupation is genuine – training benchmark commitments and obligations – applicant is approved as a standard business sponsor – no adverse information known to Immigration – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 1 November 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 9 June 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in Attachment D to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream. The nominated occupation is Chief Executive or Managing Director (ANZSCO 111111).
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) as the delegate was not satisfied on the evidence presented by the applicant that the position associated with the nomination is genuine.
The applicant applied to the Tribunal on 2 March 2021, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 13 July 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of reg 2.72 of the Regulations.
On 31 July 2023, 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 12 September 2023, 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 19 October 2023.
On 12 October 2023, the Tribunal received documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment B.
On 24 October 2023, the Tribunal received documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment C.
Mr Zhixin Cao appeared on behalf of the nominating business before the Tribunal on 19 October 2023 to give evidence and present arguments. 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. The representative attended the Tribunal hearing.
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 the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that:
·the applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa, as per reg 2.73(1).
·the nomination was made using the approved form and fee, as per reg 2.73(3), (4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as required by reg 2.73(5A) of the Regulations;
·the nomination was made in the Medium -term stream as the nominated occupation of Chief Executive or Managing Director is a medium -term specified skilled occupation in the relevant instrument, LIN 19/048, as per reg 2.73(6);
·the applicant identified the nominee, Mr Zhixin Cao, in the nomination, as per reg 2.73(8);
·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, as per reg 2.73(9);
·the nomination included disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s 245AR(1) of the Act: reg 2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per reg 2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: reg 2.73(14).
For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no material before the Tribunal that shows there is adverse information (as defined) known to Immigration about the applicant or a person associated with the applicant. For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Departmental records indicate that the applicant was approved as a standard business sponsor on 9 July 2020 for the period of 5 years. The Tribunal is therefore satisfied that the applicant is a standard business sponsor.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no evidence that the applicant owes any debt of the kind mentioned in s 140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. As discussed below, the Tribunal is satisfied that the applicant is not liable to pay a nomination training contribution charge.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
The nominee was the holder of a Subclass 457 visa granted on 14 July 2016 and valid until 14 July 2020. The Tribunal is not aware of any request made by the Minister of evidence that the nominee satisfied the language test requirements for cl 482.223. In these circumstances, the Tribunal finds that reg 2.72(14) does not apply.
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Chief Executive or Managing Director (ANZSCO 111111), is specified in the Medium -Term Strategic Skills List set out in LIN 19/048. Currently, item 5 of LIN 19/048 provide that if the position has nominated annual earnings of less than AUD180,001, the position of Chief Executive or Managing Director is excluded from being approved under reg 2.72(8):
Based on the evidence before it, the Tribunal is satisfied that the nominated position does not come within the scope of the inapplicability circumstances. According to the employment agreement, the nominated earnings were $92,000.
Given this, the Tribunal is satisfied that the nominated position is not excluded as it does not fall within the parameters of caveat, Item 5 and of LIN 19/048.
For these reasons, the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal finds that the nominated occupation of Chief Executive or Managing Director (ANZSCO 111111), is specified in the Medium -Term Strategic Skills List set out in LIN 19/048.
The nominating business operates in the capacity of a company agent for the partnership between three Australian companies:
·Newcity Development (Clarke) Pty Ltd;
·Eucalypt Development (Clarke D) Pty Ltd as Trustee for Eucalypt Development (Clarke D) Family Trust; and
·Kaifu Luo Pty Ltd as Trustee for Shenmin Family Trust.
Mr Cao explained that the above listed companies are ‘landholders’ and Newcity Development (One) Pty Ltd is a property development company.
According to the applicant’s submissions:
The applicant is one component of a larger group of companies specialising in property development. It is part of the Newcity Group, which started its operations in Guangzhou, China. The group has projects throughout Guangzhou in mainland China, and more recently, in Australia. The Newcity Group is owned by the Cao family, to which the nominee is a member.
It was submitted that over $60 million was invested by the Cao family into Australian property development projects. Of this amount, approximately $13.6 million was allocated to the nominating business for development costs.
Both Mr Cao and his wife Ms Yiwen Qin are company directors. Mr Cao does not hold any shares in the nominating business. The majority of shares (93%) are owned by his brother Mr Zhiwei Cao.
The nominating business is governed by its Board of Directors. Mr Cao, together with his wife and brother, are executive members of the Board. The Board also has two non-executive members.
The nominating business currently employs Mr Cao as a Managing Director, Ms Zou as Finance and Administration Manager, Mr Yep as a Development Manager and Mr Feng as an Assistant Development Manager. Mr Failla, who was the Director of Development, ceased his employment in May 2023 after being employed at the nominating business for a period of five years.
Mr Cao stated that the nominating business is currently in the process of recruiting a new Director of Development. He added that the business will be able to employ a new Director of Development once the business secures new projects.
Mr Cao stated in his evidence that he is and has been employed by the nominating business as a Managing Director since July 2016. He stated that his annual salary is $192,000 not including superannuation contributions. His base salary is $180,000 and annual allowances $12,000.
The Tribunal noted that the applicant submitted PAYG summaries for Mr Cao for the 2017 and 2018 financial years evidencing that his salary was paid by Eucalypt Development (Clarke D) Pty Ltd, Kaifu Luo Pty Ltd and Newcity Development (Clarke) Pty Ltd and not by the nominating business (Newcity Development (One) Pty Ltd). Mr Cao was unable to provide explanation. He reiterated that his salary is paid by the nominating business.
When the Tribunal observed that, according to the ASIC organisational search extract provided by the applicant, the nominating business does not have an Australian Business Number (ABN), Mr Cao stated that he does not fully understand the difference between an Australian Company Number (ACN) and an ABN.
Mr Cao stated in his evidence that the nominating business currently has only one project (Clark Street project) which commenced in 2014. This project involves construction of a mixed-use development that will include 361 residential apartments, a hotel, carpark and offices at Southbank, Victoria. When questioned about what stage the project is at and whether the building work has commenced, Mr Cao stated that, despite obtaining the necessary permits, the project is currently on hold because the construction cost has increased from $218 million to $255 million. He added that, in the current property market, this project is no longer feasible and that the nominating business intends wait to until the market improves.
He reiterated that, since 2014, the nominating business has completed several building projects in Australia and is also involved in the acquisition process and assessing the viability of other sites for development by the Newcity Group.
The Tribunal noted that the business currently employs four employees, that it has only one non-viable project which is currently on hold, that the most recent financial statements submitted by the applicant indicate that the annual income in the 2022/23 financial year was only $15,511 and that the net loss for the past financial year exceeded $1.07 million. Considering the size and the organisational structure of the business, the Tribunal enquired why it is necessary for the business to employ a Managing Director on a full-time basis.
Mr Cao reiterated that he provides overall direction and management to the organisation, develops its objectives and strategies and monitors and evaluates its performance. The Tribunal noted that it was submitted that he needs to be in Australia to ‘monitor market dynamics, regulatory changes and local business environment’. When questioned why those tasks could not be undertaken from overseas, considering that the nominating business currently has only one project which is ‘on hold’, Mr Cao stated that he is currently involved in ‘building to rent’ project negotiations with the JLL agency.
The evidence revealed that the business activities in Australia are funded by members of the nominee’s family in China. His brother, who is a major investor, an executive member of the Board and majority shareholder in the nominating business ultimately decides whether any building project is viable and whether it will be funded.
Mr Cao stated in his evidence that strategic decisions are made by the Board of Directors. The business employs a Development Manager, Assistant Development Manager and Finance and Administration Manager. During the past five years, the business also employed a Director of Development and, according to Mr Cao’s evidence, is currently in the process of recruiting a new one. He added that the business will be able to employ a new Director of Development once the business secures new projects which is another indication that, currently, apart from a Clarke Street project, the business has no other projects.
On 14 October 2023, the applicant submitted additional documentary evidence. According to the extract of the acquisition register, there are nine positive preliminary assessments related to proposed property developments, and one offer that was made in relation to Littlewood Street property.
The applicant submitted feasibility research related to Scott Grove property, Market survey for the Littlewood Street property, minutes of fortnightly Board meetings and copy of correspondence related to the inquiry into Queens Road property as evidence of business activities conducted by the nominating business.
In her submissions, the applicant’s representative inter alia submitted that:
The position or business has not been contrived solely to secure a migration pathway for the nominee. The property development industry is one involving large sums of money and large expenditures. The position of Managing Director is necessary to take responsibility for the overall management of the company, including setting objectives and strategic goals for the business and managing the operational performance of the business and its staff. The business was established two years prior to the nominee’s involvement. To date, the business has delivered four projects at significant costs. At its peak, the business employed 9 staff and it currently employs four full-time employees, including the nominee.
It was further submitted that the tasks undertaken by Mr Cao are consistent with the tasks described in ANZSCO related to occupation of a Chief Executive or Managing Director.
Finally, the applicant’s representative submitted that:
There has been ongoing and continual work involved relating to the Clarke Street project. Mr Cao has set up two alternative business strategies for the project. The alternative business strategies are explained in the document titled Michaels work samples. In Mr Cao’s oral testimony at hearing, he also referenced the company’s continued effort is finding a Build-to-Rent (BTR) partner. If a BTR partner is found the build is set to commence by mid 2024 (refer to information on page 4 of document titled Signed Letter from Applicant).
We ask the Member to also give consideration to the property management and acquisition activity performed by the company. These activities form part of the review applicant’s business and the Managing Director has overall responsibility for overseeing and directing these activities. The acquisition activity was brought up in the hearing by Mr Cao, but the discussion was not explored further as the Member stated there is no certainty that the acquisitions would proceed. It is not the success of the business in gaining contracts which is being assessed. The relevance of the acquisition activity is that it shows that the review applicant has ongoing business activity. Work completed in relation to potential acquisitions form a large part of the current work/output of the company and it contributes to Mr Cao full-time workload.

The applicant submitted evidence that the nominee has been working in the nominated position since July 2016 and that nomination for a subclass 457 visa was previously approved by the Department for the same position and the same nominee. As a result, the nominee was granted a Subclass 457 visa on 14 July 2016.
Having considered the evidence submitted by the applicant in response to the Tribunal’s s.359(2) letter, the Tribunal accepts that the nominee has been carrying out duties consistent with the tasks set out under the ANZSCO description for this occupation.
The Tribunal accepts that the business is involved in searching and evaluating potential property development projects and that it is imperative for the applicant company to have a Managing Director within its business structure to provide overall direction and management to the organisation.
Based on the evidence before it, the Tribunal is satisfied that the position offered to the nominee is genuine. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee’s experience and qualifications. The Tribunal is satisfied on the evidence before it, that there is a business need for the position which supports the genuine need for the position.
Accordingly, in consideration of the evidence before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and it finds that the requirements of reg 2.72(10)(a) are met.
The Tribunal accepts from the material provided, including the nominee’s employment agreement, that the position is a full-time one. Accordingly, it finds that reg 2.72(10)(b) is met.
As the criteria in both reg 2.72(10)(a) and (b) are satisfied, accordingly the requirements in reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument.
In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
The applicant has provided to the Tribunal a copy of the employment agreement dated 10 January 2020 setting out the nominee’s terms and conditions of employment and providing a salary (exclusive of superannuation) of $92,000 per year.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the relevant instrument. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to the relevant instrument: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the relevant instrument (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
There is no Australian worker performing equivalent work in the workplace, and the annual market rate salary was determined by reference to the relevant information. According to research published by Job Outlook which was provided by the review application at the time of the application, the average weekly earnings for a chief executive or managing director was $150,000 per annum. The nominees’ annual earnings are $192,000 and exceed average annual earnings for the occupation of a Chief Executive Officer or Managing Director.
Based on the evidence before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to the relevant instrument. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of reg 2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings of $92,000 will not be less than the market salary rate and thus the requirements of reg 2.72(15)(e) are met. It further finds that the nominee’s total annual earnings exceed the TSMIT, and thus the requirements of reg 2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of reg 2.72(15)(g) are met.
Accordingly, the requirements of reg 2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies.
The Tribunal has had regard to the terms and conditions of the nominee’s Contract of Employment. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with National Employment Standards.
The Tribunal is therefore satisfied that reg 2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices, given the applicant’s evidence of its ongoing recruitment efforts to date. Accordingly, the Tribunal finds that reg 2.72(18)(b) is met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant instrument. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in the relevant instrument.
In determining whether it would not be inconsistent with any of Australia’s international trade obligations to require the person to satisfy the labour market testing condition appears to require consideration of the obligations established in the agreements contained in the relevant legislative instrument.
The applicant submitted and the Tribunal accepts s.140GBA(1)(c) of the Act provides that labour market testing is required unless inconsistent with any of Australia’s international trade obligations specified in instrument LIN20/0293. Policy specifies that the practical effect of 140GBA(1)(c) is that labour market testing is not required where the nominee is a citizen/national of China
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The application was made on 28 June 2019 and the information from the Department is that the sponsor paid the training contribution charge. Therefore, the requirements of s 140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Antonio Dronjic
Member

ATTACHMENT A – DOCUMENT LIST
·Statement from the representative, Stacey Nitchov dated 19 July 2023.
·ASIC company summary for New City Development (One) Pty Ltd extracted 7 March 2023.
·ASIC current and historical company extract for New City Development (One) Pty Ltd extracted 14 July 2023.
·Department of Home Affairs notification of approval as a standard business sponsor for New City Development (One) Pty Ltd dated 9 June 2020.
·Business activity statement dated 1 July 2021 to 30 September 2021.
·New City Development (One) Pty Ltd special purpose financial reports for years ended 30 June 2022 and 30 June 2023.
·Letter from Kingsley Advisory accountants dated 11 July 2023.
·Organisational chart as of 26 July 2023.
·Group structure of New City Development (One) Pty Ltd dated 30 June 2023.
·Managing director position description dated 22 July 2023.
·Letter from the applicant dated 25 July 2023.
·Work samples for Michael Cao undated.
·Michael Cao’s timetable dated 3 July 2023 to 7 July 2023.
·Zhixin (Michael) Cao’s CV undated.
·Zhixin (Michael) Cao’s Master of Science dated 6 July 2006.
·Department of Immigration and Border Protection visitor FA 600 visa grant notices for Zhixin Cao dated 26 August 2014 and 26 August 2015.
·Department of Home Affairs notification of a grant of a Temporary Work (Skilled) (Subclass 457) visa for Zhixin Cao dated 14 July 2016.
·Employment Agreements between Zhixin Cao and New City Development (One) Pty Ltd dated 5 January 2016 and 10 January 2020.
·PAYG payment summaries for years ending 30 June 2017 to 2019 and 14 July 2023.
·ATO notices of assessment for years ending 30 June 2017 to 30 June 2022.
·Seek advertisements for similar roles undated.
·Zhixin Cao’s passport issued 19 January 2021.
ATTACHMENT B – DOCUMENT LIST
·Zhixin Cao, notification of refusal of application for a Temporary Skill Shortage (Class GK) Temporary Skill Shortage (Medium Term) (Subclass 482) visa dated 12 March 2021.
·Zhixin Cao, notification of refusal of a Visitor (Class FA) (Subclass 600) visa dated 20 August 2015.
·Representative’s submission written by Stacey Nitchov dated 10 October 2023.
·Letter of support from New City Holding Investment Group Co. Ltd dated 24 August 2023.
·Business activity statement dated 1 April 2023 – 30 June 2023.
·ANZSCO comparison table for Managing Director undated.
·Position description for Development Assistant undated.
·Letter titled ‘Variation of employment agreement for Development Manager’ dated 29 January 2021.
·Position description for Finance Manager undated.
·Zhixin Cao’s updated resume undated.
ATTACHMENT C: DOCUMENT LIST
·Representative’s submission written by Stacey Nitchov dated 22 October 2023.
·Wecom conversations dated 14 July 2023 to 17 October 2023.
·New City Developments fortnightly meeting minutes for period of 20 April 2023 to 19 October 2023.
·New City Developments monthly meeting minutes for period of 3 March 2023 to 2 October 2023.
·Hampton market survey dated 19 June 2023.
·Glen Iris feasibility research undated.
·Acquisitions register 2022 to 2023.
ATTACHMENT D – DOCUMENT LIST
·ASIC current and historical company extract for New City Development (One) Pty Ltd extracted 18 October 2023.
ATTACHMENT D – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2023] AATA 3680

24 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies