ON KEE DRY SEAFOOD PTY LTD (Migration)

[2021] AATA 2390

ON KEE DRY SEAFOOD PTY LTD (Migration) [2021] AATA 2390 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  On Kee Dry Seafood Pty Ltd

CASE NUMBER:  1817378

HOME AFFAIRS REFERENCE(S):          BCC2017/2328790

MEMBER:Wan Shum

DATE:10 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 May 2021 at 11:33am

CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream – Marketing Manager – position associated with the nominated occupation is genuine – standard business sponsorship (SBS) was approved – no less favourable terms and condition of employment – applicant lawfully operating a business in Australia – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19, cl 457.223

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 May 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).

2. The applicant applied for approval on 30 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application finding that the nomination did not satisfy r.5.19(3)(f) of the Regulations because the training benchmarks had not been met. The visa application was refused because the nomination had not been approved.

5. Applications for review were lodged in respect of these decisions and both parties were represented in relation to the review by a registered migration agent.

6. A hearing was scheduled for 12 March 2021, and Mr Qian Mo appeared on behalf of the nominator by video on Microsoft Teams to give evidence and present arguments. The nominee also gave evidence by video on Microsoft Teams. The representative was present throughout. An interpreter in the Cantonese and English languages was available and used when required.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. 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

8. 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.

9. The nominator is a dry seafood product wholesaler, trading as On Hing Dry Seafood. The nominator was registered in August 2011 but began operations in early 2012. The nominator’s business is to supply quality dry and frozen seafood products from Australia and New Zealand with target customers described as ‘Asian food lovers’ located in Australia and Asia. They process the products, which they purchase frozen, in their factory which is located in Turrella, a suburb in Sydney. The food products are defrosted and dried and then packaged for sale.

10. Mr Mo is the Managing Director. His father and grandfather operate similar businesses in China and Hong Kong. According to the organisation chart provided, there are 9 employees including the Director, with 6 Australian citizens and 3 temporary residents employed. The nominated position is identified as the Marketing Manager with a Marketing Assistant reporting to the position. The other positions are General Manager, who has the following reports: Sales Representative, Warehouse Assistant and Production team member; and a Finance Manager, who works with an Assistant Accountant.

11. The nominator was initially approved as a standard business sponsor under the temporary business sponsorship program for a period of 3 years from 14 November 2014. The nominator was recently approved again as a standard business sponsor on 25 January 2021 for a period of 5 years. The nominator sponsored Ms Shulin Tan (the nominee) for a Subclass 457 visa which was granted on 21 May 2015 on the basis that she would be employed by the business as a Marketing Specialist on a full-time basis.

    The application must be compliant: r.5.19(3)(a)

12. 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.

13. The material on the departmental file is that the application was made on form 1395 (internet), on 29 June 2017, and accompanied by the fee prescribed in r.5.37. The application form included a written certification by the nominator concerning s.245AR(1) of the Act under the ‘Paying for visa sponsorship’ declaration.

14. Ms Shulin Tan was identified as the nominated person. The information before the Tribunal is that, at the time, she held a Subclass 457 visa granted on the basis of satisfying cl.457.223(4).

15. The application identified the occupation of Marketing Specialist, ANZSCO code 225113, in relation to the position. This position is listed in ANZSCO and has the same 4‑digit unit group code as the occupation that was approved under the Subclass 457 visa program. The Tribunal has also considered for itself whether the position is that of a Marketing Specialist having regard to the ANZSCO description.

16. Having noticed that there was nil expenditure on marketing and advertising in the financial statements for financial year ending 30 June 2016, the Tribunal had requested evidence of marketing activities. It was provided with samples of magazine advertisements, profiles developed on social media platforms of WeChat, Sina Weibo and Little Red Book, the website and photographs showing participation in a Darling Harbour exhibition in 2016 with a stall. The Tribunal has viewed the website, which is marketed to Chinese customers. It has also taken into account evidence of more recent marketing campaigns for Chinese New Year and International Women’s Day and evidence about their investigations into producing videos for YouTube and attempting to use social media influencers to create a post regarding their product. Following the hearing, an explanation was provided about the low marketing and advertising expenses advising that in the first couple years after they started online marketing, they were building up their profile on social media platforms, most of which were free. They engaged in some marketing activities in China, and both the nominee and Director went to China to attend some exhibitions, but those costs were reported in the category ‘Travel, Accommodation and Conference’ instead of marketing/advertising. The Tribunal accepts this explanation.

17. Having considered the evidence, the Tribunal has formed the view that the position appears consistent with the nature and size of the business.

18. The Tribunal thus finds that the occupation identified in relation to the position is listed in ANZSCO and has the same 4-digit occupation unit group code as the occupation carried out by the nominee.

19. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

20. 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.

21. The evidence before the Tribunal is that the nominator was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act. Based on the oral and written evidence provided as to the financial position and activities of the nominator, the Tribunal finds that the nominator is actively and lawfully operating a business in Australia.

22. Furthermore, the Tribunal accepts that the nominator did not meet r.1.20DA, or r.2.59(h) or r.2.68(i), in the most recent approval as a standard business sponsor, as the nominator is not an overseas standard business sponsor.

23. Given the above, the requirements in r.5.19(3)(b) are met.

    Previous employment of the nominee: r.5.19(3)(c)

24. 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.

25. The nominee was granted an offshore Subclass 457 visa on 21 May 2015. The information as to the related visa holder’s employment with the nominator includes various documents and evidence given at the hearing regarding her duties and responsibilities since commencing employment. The documents before the Tribunal include a copy of the nominee’s bank statements, which reflect the regular payment of wages from the nominator from July 2014 to August 2017.

26. The Subclass 457 visa was granted in respect of the position of Marketing Specialist for a period of 4 years (not including any period of unpaid leave). Having regard to the oral evidence from both the Director and the nominee, the Tribunal accepts that the employment was full‑time since the visa was granted. The location of employment was in a suburb in Sydney, NSW, and thus was undertaken in Australia.

27. Based on the information before it, the Tribunal finds that Ms Tan had been employed in Australia in the position of ‘Marketing Specialist’ full-time continuously from July 2014 which means that she was employed in the position for which she held the Subclass 457 visa for at least 2 of the 3 years immediately prior to the nomination application made in June 2017.

28. Given the above findings, the requirement in r.5.19(3)(c)(i) is met.

    Future employment of the visa holder: r.5.19(3)(d)

29. 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.

30. The Tribunal has before it a copy of the contract of employment dated May 2019 which reflects a base salary of $75K for the position of ‘Senior Marketing Officer’ with 9.5% superannuation. The minimum weekly hours set out in Schedule 2 are 38 hours per week, which the Tribunal accepts is full‑time. There is no period of employment specified and there are no terms that expressly preclude the possibility of an extension.

31. The Tribunal has also considered whether the nominator has the financial capacity to employ the applicant full-time for at least 2 years. In making that assessment, the Tribunal has had regard to the financial statements provided for financial years ending 30 June 2016, 30 June 2017, 30 June 2018 and 30 June 2020, and the company tax returns provided. According to the financial statements, the business had been achieving a turnover of around $3.5 million for each financial year since 30 June 2016 although there was a decrease in the last financial year to $2.7 million. Mr Mo had told the Tribunal that there was a definite drop in sales in the first couple of months of the COVID-19 outbreak. The BAS for the past 6 quarters reflects that the sales in April to June 2020 and July to September 2020 were just over $500K, having achieved sales of over $850K in the previous quarter. It notes that the nominator appears to have achieved the highest sales in the October to December 2020 quarter which may reflect a return to sales figures of previous years. The Director claims that the January to March quarter is considered the peak season for the business.

32. The Tribunal enquired as to the liabilities reflected in the balance sheet which included an amount of nearly $2 million as a Director’s loan. The response provided after the hearing was that around $600K is attributable to building the warehouse and coolroom in the current Turrella address from 2012 and $900K was a cash injection for goods purchased in mid-2019. The cash was generated from the Director refinancing his personal home loan. The Tribunal also noted an asset in the form of a loan to the nominee, and it was explained that this is an expense paid by the company for the purposes of preparing her tax documents in 2018 which had been overlooked. The Director indicated that the plan is to repay the Director’s loan in 2 years, with a repayment amount of $600K per year. The Tribunal considers the planned payment timeframe is achievable if the sales figures return to previous levels. While this is unknown, the nominee has been employed by the nominator from 2014 when the 457 visa was granted as a Marketing Specialist, initially on a salary of $60K, so the expenses relating to her employment have been part of the expenses of the business from 2014 onwards. The business has continued to operate and the Tribunal finds that the business will have the financial capacity to employ the nominee for the next two years.

33. Having regard to all the information before it, the Tribunal accepts that the nominee will be employed on a full-time basis for at least 2 years as required, and on terms that do not expressly preclude the possibility of an extension.

34. 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)

35. 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.

36. The Tribunal was provided with copies of job advertisements from the Seek and CareerOne websites from March 2021 which reflect a starting salary for full-time Marketing Specialist positions based in Sydney of $60,000 to $80,000, with the lower range of salaries for persons who report to Marketing Managers.

37. Having regard to the size of the business and noting that the nominator also employs a Marketing Assistant who reports to the nominated position, the Tribunal finds that the salary of $75,000 is within the range of salaries for the occupation. The terms and conditions of the employment agreement include standard annual and personal leave entitlements and the Tribunal is satisfied that the terms and conditions that apply to the position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.

38. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

39. 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.

40. When the application for review was made, the most recent approval as a standard business sponsorship application for the nominator was approved on 14 November 2014 for a period of 3 years. It was submitted based on the documents provided that expenditure on training exceeded 1% of payroll as required by Benchmark B of IMMI 13/030. However, the nominator has been recently approved as a standard business sponsor from 20 February 2021.

41. It is the training requirements that apply for the most recent sponsorship which are relevant for r.5.19(3)(f)(i). At the time of the most recent sponsorship approval, there is no evidence before the Tribunal that the nominator had made any training commitments (which would usually only arise for businesses operating for less than 12 months). In addition, following legislative changes, the training obligation no longer applies to standard business sponsorships approved after 18 March 2018, which has effectively been replaced by the National Training Contribution Charge.

42. Given that the obligation does not apply, and noting that evidence has been given to the Tribunal of training which it is claimed was conducted by WUS International Pty Ltd each year since 2015, the Tribunal considers that it is reasonable to disregard r.5.19(3)(f)(i). Accordingly, the requirement in r.5.19(3)(f) is met.

    No adverse information known to Immigration: r.5.19(3)(g)

43. 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.

44. The Tribunal is not aware of any adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator

45. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

46. 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.

47. There is nothing before the Tribunal to indicate that the nominator has not had 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.

48. Accordingly, the requirement in r.5.19(3)(h) is met.

    Conclusion

49. Based on the findings above, the Tribunal is satisfied that the nominator meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

50. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Wan Shum
    Member