P&J GROUP (AUSTRALIA) PTY LTD (Migration)

P&J GROUP (AUSTRALIA) PTY LTD (Migration) [2021] AATA 3110 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  P&J GROUP (AUSTRALIA) PTY LTD
CASE NUMBER:  1822866
HOME AFFAIRS REFERENCE(S):          BCC2017/2340722
MEMBER:Karen McNamara
DATE:14 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 July 2021 at 12:56pm
CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Fleet Manager – position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 years – genuine need for the nominator to employ a paid employee – 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 65, 245R, 359
Migration Regulations 1994, rr 1.13, 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 18 July 2018 to reject the application by P&J GROUP (AUSTRALIA) PTY LTD (the applicant) 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 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy regulation 5.19(4)(a)(ii) because the application failed to identify a need for a paid employee to work in the position under the direct control of the nominator. The delegate also found that the nomination did not satisfy regulation 5.19(4)(d)(i) because the application failed to demonstrate financial capacity to employ the nominee for at least two years.
The applicant applied to the Tribunal on 7 August 2018, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
ADVERSE INFORMATION – Invitation to comment
On 22 March 2021, the Tribunal wrote to the applicant and nominee under s.359A of the Act. The invitation seeking comment and further information from the applicant, included the following;
‘ There is information before the Tribunal by way of allegations claiming that the
nomination application is fake and made for the sole purpose of facilitating a
permanent residency visa for Ms May Ying Tan (the nominee). The allegations
are as follows:
o The nominee has never worked for P&J Group (Australia) Pty Ltd as a
Fleet Manager and that the position does not exist. The nominee does not
possess the experience or qualifications she claims in her application and
since moving to Sydney in 2017 she has been helping out in a restaurant.
o P & J Group (Australia) Pty Ltd is owned by the nominee’s biological sister,
Ms Su Hooi Tan, who paid a third party to be named as the Director of P&J
Group (Australia) Pty Ltd to avoid suspicion.
o The sisters have conspired to lodge a fake application including nominating
a high salary to avoid the IELTS test requirement, as the nominee does not
have a good English foundation, she is almost unlikely to meet the English
requirement.
o Based on the declared financial income of the business, it is illogical for the
nominator to pay the nominated salary amount. The applicant has never
issued a PAYG to the nominee and the nominator is in debt to the ATO.
Any payments made to the ATO have been made for the sole purpose to
support the fake application.
o The nominator and others have conspired to file another application with
the Department. The allegations claim that Su Hooi Tan's de-facto spouse,
Boon Fei Koo, who is a Permanent Resident will claim that May Ying Tan is
his de facto spouse and sponsor her application for Permanent Residency,
or alternatively, May Ying Tan's husband, Fook Lung Teoh will pretend to
be Su Hooi Tan's de facto spouse and get her to sponsor his Permanent
Residency application.
Department of Home Affairs records show that on 6 November 2017, the
Department received allegations that the nominating business was employing
workers without work rights.
The above information is relevant because r.5.19(4)(f) requires that there is no
adverse information known to Immigration about the nominator or persons associated
with the nominator.
Additionally, Regulation 5.19(4)(a)(ii) requires that the application for approval must
identify a need for the nominator to employ a paid employee to work in the position
under the nominator’s direct control.
If the Tribunal relies on this information, it may find that you do not satisfy the
requirements of r.5.19(4) and consequently the decision under review would be
affirmed.’
The Tribunal sought response from the applicant by 6 April 2021.
The applicant and nominee responded to the Tribunal on 6 April 2021, by way of Statutory Declarations signed and declared on 5 and 6 April 2021.
The applicant in her statutory declaration dated 6 April 2021 submits as follows;
(a)‘I confirm that Ms May Ying Tan (the nominee) worked for P&J Group (Australia) Pty Ltd since July 2018 to present as Fleet Manager.
(b)The position of Fleet Manager has always existed since the inception of the company as we operate a car rental business.
(c)     I am not able to comment on whether the nominee possess the experience and qualification required of a Fleet Manager for the subclass 186 application. However, I confirm that she possess the necessary skills to be a Fleet Manager for our company.
(d)I am not sure how to respond to the allegations made that I paid a Director to avoid suspicion because I do not know what this suspicion relates to.
(e)     However, I can confirm that I am the biological sister of the nominee and sole shareholder of P&J Group (Australia) Pty Ltd.
(f)I was the former Director of the company and had to reduce my participation in the business as I gave birth in 2017, 2018 and 2020.
(g)     I have never conceleaed my identity. The nominee has always been transparent with the Department that we are biological sisters, declaring in her previous visa applications(through Form 8), her family composition, listing me as her sister. In addition, I listed myself as the named contact person for the refused application 186 nomination application.
(h}I can confirm that the nominee has a good English proficiency as she completed her further education in Australia since 2008.
(i) The business has has the financial viability to pay the nominee the nominated salary amount and this is not on the basis of declared financial income alone. It includes our company's expansion plans and injection of capital to the company.
(j) It is not illogical to pay my sister the nominated amount as she took over my role as Fleet Manager a position that is central to the success of the business. Should I have continue to hold this position, I would have equally remunerated myself the nominated salary amount or more.
(k)     The company issues the nominee PAYG. As advised by the company financial advisers, it chose to be on a payment plan with the ATO in relation to taxes.
(I)    P&J Group (Australia) Pty Ltd is a family owned and operated business. My brother, Theong Yong Tan was also sponsored by the company as a permanent resident in the past and continues to work for the business.
(m) Family disagreements are quite common, especially in family-operated businesses. Our family had a falling out with my brother's wife. I ask that the Tribunal seek that she provide evidence under oath so that the Tribunal is able to turn its mind to the legal criteria for the refused nomination on review. In particular, I do not know how to comment to allegaltions in relation to the sponsoring under the Partner visa program as that proposition doesn't make sense.
(n)    I confirm that P&J Group (Australia) Pty Ltd does not employ any workers without work rights. I also confirm that the Department of Home Affairs or Ausralian Border Force have never contacted our company in relation to the allegations it received.
(o)    After reviewing the version of Regulations 1.13A and Regulations 1.13B applicable at the time we applied the subclass 186 nomination, I confirm that the company does not have an issue with adverse information, including persons associated with the company.
(p)    We have previously submitted information to evidence that the company has a need for the nominee to be employed as a Fleet Manager, directly under its control.I understand that these information are in adequate to satisfy the Tribunal. I am currently preparing more information and aim to submit well before the hearing date.
(q)    I hope that the Tribunal will find these documents satisfactory so that it may set aside the refusal without the need for a hearing.
(r)   Financial documents of the company are currently being prepared. I intend to submit these documents to the Tribunal to show that the company is well-positioned with the financial capacity to support the nominated salary amount and financial viability towards its ongoing financial obligations.
(s)    However, if the Tribunal finds that it is are unable to make a decision in our favour, I am confident to address any concerns the Tribunal may have at our hearing on 06 May 2021.’
The nominee in her statutory declaration dated 5 April 2021 submits;
‘There are some truth to the allegations made, however, I do not see the relevance to how these information would form part of an unfavourable decision.
Nevertheless, there are several points that are simply untrue. I am thankful that the Tribunal has not made up its mind on these preposterous information.
My sister, Su Hooi Tan is the sole shareholder of P&J Group (Australia) Pty Ltd. She previously ran this business as Fleet Manager and invited me to take over when she was planning to start a family back in 2016. We have never concealed this fact. She was named as the contact person for P&J Group (Australia) Pty Ltd for the refused subclass nomination 186 application and I have always declared her as my sister in my previous visa applications, eg. as required in Form 80.
I respectfully request the Tribunal review my resume and information submitted for my subclass 186 visa application. Contrary to the what is being alleged, I have not declared in my subclass 186 visa application that I possessed work experience as a Fleet Manager. In 2008, I came to Australia after completing my high school in Malaysia to further my studies. I understand that the education I received in Australia along with my work experience back in Malaysia was sufficient to meet the requirements of the subclass 186 visa.
Mu husband owns a restaurant and I do assist him from time to time. I was advised by my legal representatives that the conditions to my bridging visa does not contain work limitations and that my obligations towards P&J Group (Australia) Pty Ltd truly begins if my subclass 186 visa is approved. On this point, I'd like to take the opportunity to say that the allegations of a 'fake application' and submitting a Partner visa are outrageous and illogical because we are also eligible to apply for permanent residency under the Business Migration program, which do not contain an assessment that has that level of subjectivity.
Ialso reject the allegation that I do not have a good English foundation as I receive my education in Australia and Malaysia, a Commonwealth country where English is widely-used.. I am able to obtain the score of 6.0 IELTS but as there is no legal requirement for me to do so, I was advised that by taking the test, it would merely offer a 'cosmetic' effect , one that may have had some 'utility' at the Departmental level but certainly not at the level of decision-making the Tribunal provides. However, if it lends assistance to the Tribunal I am happy to take the IELTS test. Alternatively , I trust that at the Tribunal hearing, the Tribunal will be able to ascertain the same.
I would like to point out that I applied for the subclass 186 visa application under the direct entry stream which does not require me to commence my employment with the nominator. Therefore the matter raised regarding PAYG would not be relevant. Nonetheless with respect for the Tribunal, as I am employed by P&J Group (Australia) Pty Ltd, I do in fact receive PAYG.
I have consulted the Director of P&J Group (Australia) Pty Ltd and my sister the sole shareholder of the company. I believe that the company does not have any adverse information, including persons associated with the company.’[2]
[2] Transcribed as prepared and submitted by the nominee
On 6 May 2021 the applicant provided to the Tribunal a comprehensive submission prepared by their Migration Agent including supporting information to support the application.
On 6 May 2021, the applicant represented by Ms Su Hooi Tan (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms May Ying Tan (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1826648) and Mr Lawrence Gao (Accountant & Tax Agent) and Mr Zhe Hu (Office Manager). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
Prior to the commencement of the hearing the interpreter advised that she was accredited in Cantonese but could speak Mandarin. The applicant and nominee confirmed that they could speak Cantonese and were willing to proceed using a Cantonese interpreter. The Tribunal pointed out to the applicant and nominee that it was important that they fully understood the hearing process and the Tribunal’s questions. The applicant and nominee advised that they were happy to proceed with the interpreter that had been engaged. During the course of the hearing the Tribunal regularly intervened to ensure the applicant understood the questions and the interpreter. The applicant and nominee advised that they did.
The Tribunal was unable to conclude the hearing in the allocated timeframe and adjourned the hearing to a later date.
On 10 May 2021 the Tribunal wrote to the applicant via the authorised representative seeking confirmation as to whether the applicant and nominee wished to continue the resumed hearing using an accredited Cantonese interpreter or wished to utilise the services of an accredited Mandarin interpreter.
On 11 May 2021 the representative responded to the Tribunal, advising ‘In relation to interpreter, as also outlined previously in the responses to the hearing invitation on 05 May 2021 prior to the first hearing, the applicants requested for an accredited Mandarin interpreter. However, at the hearing, the Tribunal provided an accredited Cantonese interpreter. Though the applicants are able to communicate in Cantonese, their proficiency is not as good as in Mandarin language. In addition, upon listening to the recording, there were errors in the interpretation and we submit that it’s worth revisiting the important points the Tribunal wishes to rely on, for clarity. Thus, we reiterated and reconfirm our request for an accredited Mandarin interpreter.’
On 25 May 2021 the hearing was resumed. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearings by telephone. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent and lawyer. The representative and the lawyer attended the Tribunal hearing.
On 26 May 2021, the Tribunal wrote to the applicant and nominee under s.359A of the Act. The invitation sought comment and further information from the applicant, including the following;

‘ On 25 May 2021 (post hearing) the Tribunal received allegations that the visa applicant is not working in the nominated role or the venue they are supposed to be working at. The informant claims the visa applicant is working for a different employer and provided the address of a restaurant located at 275 Beamish St, Campsie.
The aforementioned information is relevant because r.5.19(4)(f)(i) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator.
Additionally, Regulation 5.19(4)(a)(ii) requires that the application for approval must identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
If the Tribunal relies on this information, it may find that you do not satisfy the requirements of r.5.19(4) and consequently the decision under review would be affirmed.’

The Tribunal sought response from the applicant and nominee by 9 June 2021.
The applicant and nominee responded to the Tribunal on 9 June 2021, by way of Statutory Declarations signed and declared on 9 June 2021.
The applicant in her statutory declaration dated 9 June 2021 submits as follows;
‘ I am writing in response to the AAT’s invitation to comment letter, dated 26 May 2021, for the AAT case number 1822866. Particularly, to another allegation received by the AAT after the hearing of the case that took place on 25 May 2021.
Firstly, I would like to reiterate and stand by what I have declared in my Statutory Declaration signed and dated on 06 April 2021 that was also provided to the AAT.
As declared in my statutory declaration, and as what AAT can observe during the hearing, I am at all times transparent and never concealed anything. I declare that all information I provided to the AAT and the Department are always true and accurate, including in relation to the Nominee's work and role as Fleet Manager in the company.
With regards to the allegation that the Nominee does not work as fleet manager but rather works at the restaurant located at 275 Beamish St, Campsie, this allegation is incorrect. The Nominee is not employed by the restaurant. The restaurant is owned and operated by the Nominee's husband. The Nominee does maintain her full-time position as a fleet manager.
I am unsure of the motives behind these continuous baseless allegations to my case and my sister's. If the Member has concerns over these allegations that may impact the case, I am more than happy and prepared to have further hearing to outline it. I put my trust to the Member's good judgement and consideration to all the relevant things to my case.
I am firmly of the belief that, the nominated position of a Fleet Manager is relevant to the company with a fleet of about forty-three (43) vehicles. A Fleet Manger is involved in the everyday functioning of the company, especially considering the number of vehicles, the revenue and growth of the company. Furthermore, the need for a Fleet Manager is highlighted in the company's expansion plan to diversify its customer base. As the company plans on working with partners such as other smash repairers referring customers and Motor Traders' Association of NSW, along with the purchase of new vehicles, the increase in business activity collectively indicates the need for a Fleet Manager.’[3]
[3] Transcribed as prepared and submitted by the applicant

The nominee in her statutory declaration dated 9 June 2021 submits;
‘ I am writing in response to the AAT’s invitation to comment letter, dated 26 May 2021, for the AAT case number 1826648. Particularly, to another allegation received by the AAT after the hearing of the case that took place on 25 May 2021.
I want to firstly thank the Tribunal again, that it has kept an open mind on these preposterous allegations that continue to be directed at my case.
My position and what I said in my statutory declaration previously are still the same, that all I said and provided to the Department, and the Tribunal during the appeal process including at the hearing, are all true and accurate -including that I have been working with the company P&J Group as their Fleet Manager. I also respectfully must again ask the Tribunal to review the relevance of the information when deciding about my subclass 186 visa, along with what I have declared in the past about any allegations to my case.
The allegation stated that I am not working at P&J Group, but I work at the restaurant located at 275 Beamish St, Campsie.. The allegation is incorrect. I am not employed by the restaurant in question. The Restaurant is owned by my husband. It is a business run by my family. It is completely understandable for me to help my family restaurant during my free-time, as the restaurant is still open after I get off from work. Although my husband has hired staff for his restaurant, the restaurant can still be short-handed at times, depending on the number of customers. In other words, I still maintain the full time position of fleet manager at P&J Group, but I use my free time to help out my family’s restaurant when I am needed. Furthermore, I often take my children to visit their father and eat at the restaurant after work.
I am unsure of the motives behind these continuous baseless allegations to my case and my sister's. If the Member has concerns over these allegations that may impact the case, I am more than happy and prepared to have further hearing to outline it. I put my trust to the Member's good judgement and consideration of all the relevant things to my case.’[4]
[4] Transcribed as prepared and submitted by the nominee
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 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.
Background
The applicant is a car rental and hire business located in the Sydney suburb of Peakhurst. ASIC records show that the company was registered on 31 March 2015.
On 30 June 2017, the applicant lodged an application for an employer nomination approval for the position of Fleet Manager (ANZSCO 149411) under the Direct Entry stream. The nominated base rate and guaranteed earnings is $182,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The Tribunal notes the inclusion of 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. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations, because the delegate was not satisfied that the application identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the need to employ a paid employee to work in the position under the nominator’s (the applicant) direct control. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application and that the Tribunal has had the opportunity to discuss with the applicant at the hearing, the need to employ a paid employee to work in the position and the applicant’s business activities.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence provided by the applicant at the hearing. In support of the need for the position, the applicant has provided evidence in the form of written submissions dated 22 August 2017, 15 February 2021 and 6 May 2021 and documentation supporting the applicant’s business activities as a car rental/hire business, including document titled ‘Business Memorandum’.
At the hearing the Tribunal discussed at length with the applicant the business need for the nominated position. The Tribunal noted evidence before it that the nominee is the applicant’s sister and discussed with the applicant the anonymous allegations purporting that the nominee has never worked for the business and that the nominated salary of $182,000 was proposed so the nominee would be exempt from skills and English language requirements.
The applicant told the Tribunal that the business is a family business in which she already employs her brother. The employment of her sister in the business is important to her as she wants someone she trusts to work in the business and is reliant on her sister’s help in the business to allow the applicant more time to care for her children.
In undertaking its assessment of whether the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has afforded careful consideration to the totality of the evidence before it, including the representative’s written submissions and oral evidence provided by the applicant as to the need to employ a paid employee to work in the position of Fleet Manager. Having regard to the evidence before it, the Tribunal considers that whilst the relationship between the applicant and nominee raises questions as to the motivation of the nomination, the issue under consideration by the Tribunal is whether the application has identified a need for the nominator to employ a paid employee to work in the position of Fleet Manager in the business and that the relationship between the nominator and nominee is that of employer and employee.
In undertaking this assessment, the Tribunal has afforded weighting, to evidence which supports the nominee’s history of employment in the position of Fleet Manager, the nature and scope of the business, how the position contributes to the day to day activity of the business and whether the nature of the position merits the offered remuneration.
The applicant told the Tribunal that the need for the business to employ a Fleet Manager is consistent with the nature of the business in so far as the business is a car rental/hire business with a fleet of 43 vehicles. The business has entered into an arrangement with a smash repair business (X-Five AUS Pty Limited also known as X-Five Prestige Vehicles Repairs and Services Centre) and provides long term car rentals to customers requiring replacement vehicles whilst their cars are being repaired.
The delegate in their decision dated 18 July 2018 found that the applicant provided insufficient evidence to support that the applicant’s core business is as a “car rental company” as claimed. The Tribunal notes that the applicant has provided evidence to support the car rental operations including; vehicle ownership, certificates of insurance, car registration, motor vehicle sales/purchase invoices/receipts, motor vehicle lease agreements, car rental agreements/invoices, commercial premises lease agreement and independent accountant’s report dated 30 April 2021.
Whilst the Tribunal is cognisant of the relationship between the applicant and nominee and that the nominated salary affords exemptions to the nominee from skills and English language requirements, the Tribunal in making its assessment has afforded consideration to the evidence before it and the relevant legislation at the time of application[5]. The Tribunal is therefore satisfied on balance that the application has identified a need to employ a paid employee to work in the position of Fleet Manager under the nominator’s direct control.
[5] For post 1 July 2017 nominations, the requirement that there is a genuine need for the nominator to employ the person to work in the position was introduced at reg 5.19(4)(h)(i)(AA).
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(a)(ii) is met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal accepts on the evidence before it that the applicant owns and operates a car rental/hire business and is located at Peakhurst, NSW. Based on the material provided to the Tribunal, including; financial statements, company tax and BAS returns, ASIC Company details, commercial lease agreement, bank statements, sales invoices and certificates of insurance, the Tribunal is satisfied the applicant is actively and lawfully operating a car rental/hire business in Australia and directly operates that business.
Accordingly, the requirements in r.5.19(4)(b) are met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply
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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The delegate in their decision of 18 July 2018, was not satisfied that the nomination met regulation 5.19(4)(d) because the application did not demonstrate that the business had the financial capacity to employ the nominee on a full time basis for at least two years.
In undertaking an assessment of the financial capacity of the business, the delegate noted that the applicant stated that they will pay the nominee a base salary of $182,000 per annum, which offers exemptions for skills and English requirement for the nominated visa applicant. The delegate was not satisfied that the financial evidence before them demonstrated that the applicant had the financial capacity to afford to pay a substantial increase in wages.
The Tribunal has formed a different view based on the financial evidence provided by the applicant attesting to the applicant’s financial viability and capacity to employ the nominee for at least two years. The Tribunal notes that more recent evidence including BAS returns, bank statements and financial statements was presented to it, than was given to the delegate in the original application.
Whilst the Tribunal is cognisant that the nominated salary affords exemptions to the nominee from skills and English language requirements, the Tribunal has turned its mind to whether the applicant demonstrates the financial capacity to pay the nominee a salary of $182,000 per annum for at least two years. In undertaking this assessment, the Tribunal has considered the financial evidence before it, in addition to the market salary of the position in so far as establishing whether the nature of the position merits the offered remuneration.
In considering whether the business has the financial capacity to pay a full-time salary of $182,000 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before it including the contract of employment, nominated salary amount, the business’s financial statements, documents submitted to the ATO, bank statements, evidence from the applicant’s accountant and tax agent, representative’s submissions, business memorandum and evidence attesting to market salary for a Fleet Manager.
At both hearings the Tribunal raised its concern with the applicant and the accountant as to the financial capacity of the business to pay the nominated salary of $182,000 per annum to the nominee. The evidence available to the Tribunal at the time of the hearings reflected the applicant’s financial position as of 30 June 2020 which showed the business recorded negative net equity of $257,293 and taxable net loss of $387,019.
Subsequent to the hearing of 25 May 2021, on 4 June 2021, the applicant provided draft financial statements for the period 1 July 2020 to 27 May 2021, bank statements and a comprehensive report from the applicant’s accountant dated 2 June 2021 attesting to the financial position of the business and capacity to pay the nominated salary.
The Tribunal has considered the draft financial statements and notes that the applicant’s cash position has improved significantly recording a balance of $593,337. The applicant’s financial performance has also improved. With recorded sales of $1,139,623 and trading profit of $935,056, representing an improved profit margin of 82%. The net position reported a profitable surplus of $415,161, reverting the negative retained earnings as reported at the end of the 2020 financial year, to a positive $157,770 as at 27 May 2021.
The Tribunal notes that the applicant’s most recent financial statements are in draft format and affords minimal weighting to this evidence in isolation, however the applicant has provided business bank statements which support as at 28 May 2021 cash balances of $567,664 recorded in the business CBA account xx7905 and 31 May 2021 $25,573 in the business Westpac account xx6284. The applicant has also provided a statement from CBA account xx7905 dated 28 April 2021 showing a balance of $750,653 which she claims is available to be injected into the business when considered necessary. The applicant claims that the $750,653 was previously injected into the business but was temporarily taken out of the company’s account as at the date when the statements were provided to the Tribunal. The Tribunal notes that the account number is the same as the bank statement dated 28 May 2021 the balance of this account is $567,664. In the absence of compelling evidence to support that the $750,653 is additional to the amount of $567,664, the Tribunal affords minimal weight to the applicant’s claims of having an additional $750,653 to inject into the business.
Whilst the Tribunal has afforded minimal weighting to certain aspects of the applicant’s financial evidence as discussed above, having overall consideration to the evidence before it, including the cash assets of the business, the Tribunal is satisfied on balance that the applicant can sustain the employment of the nominee on a full-time basis on a salary of $182,000 per annum for at least two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the contract of employment signed and dated 22 June 2017. The contract sets out the terms and conditions of employment and indicate that the period of employment is ongoing. The contract stipulates the base salary is $182,000 per annum. The period of employment is specified as full time for a minimum of two years from the grant of the nominee’s 186 visa. There is no term excluding an extension of the contractual engagement.
The Tribunal is satisfied based on the contract of employment dated 22 June 2017 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(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.
The contract of employment dated 22 June 2017, sets out the terms and conditions of employment and indicates that the nominee’s salary will be $182,000 per annum. The nominee’s leave entitlements include annual, personal and carers leave in addition to long service and compassionate leave in accordance with the National Employment Standards.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the 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 requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) 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.
As mentioned previously in this decision, in accordance with s.359A of the Act, the Tribunal invited the applicant to respond to information before the Tribunal that suggested there is adverse information concerning the applicant and nominee.
In consideration of whether the information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B as at the time the application was lodged.
'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law or having become insolvent. The matters listed in r.1.13A(2) include immigration law, industrial relations and occupational health and safety, discrimination, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.

The definition also specifies that the 'conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years' – see r.1.13A(3).
Regulation 2.57(1) provides that a 'competent authority' means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
The Tribunal has considered whether the allegations fall within the definition of ‘adverse information’ and notes that there is no evidence currently before the Tribunal to suggest that there is adverse information known to the Immigration within the meaning provided in r.1.13A and r1.13B. Accordingly, the requirement of r.5.19(4)(f) is met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister under the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
Department records show, the applicant specified in their nomination application that the position and the nominator’s business are located at Peakhurst, NSW which is not classified as ‘regional Australia’ for the purposes of r.5.19(4)(h). Accordingly, the Tribunal must be satisfied that the requirements of r.5.19(4)(h)(i) are met.
The Tribunal accepts on the evidence before it that the applicant operates a car rental/hire business. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in the relevant instrument in writing for this sub-subparagraph. IMMI 16/059 provides that Fleet Manager (ANZSCO 149411) is a specified occupation for the purposes of r.5.19 (4)(h)(i)(A). Fleet Manager (ANZSCO 149411) is found in Schedule 1 of this Instrument.
The Tribunal is therefore satisfied on the evidence before it, that the tasks of the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing and that the occupation is applicable to the person identified under subparagraph r.5.19(4)(a)(ii) in accordance with the specification of the occupation.
Accordingly, the requirements of r.5.19(4)(h)(i)(A) and (AAA) are met.
As the applicant’s business has been operating for more than 12 months, the applicant must meet the requirements for the training of Australian citizens and permanent residents specified by the Minister for the purposes of r.5.19(4)(h)(i)(B)(I). The relevant written instrument, IMMI 13/030, specifies in Schedule A that the training benchmarks for an established business are:
(A)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
(B)recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The applicant has sought to meet training benchmark (A), through payment of at least 2% of its payroll in payments allocated to an industry training fund that operates in the same industry as the business.
Recent expenditure for Training Benchmark A is defined as expenditure incurred in the 12-month period immediately before the lodging of the nomination.
Information before the Tribunal shows for the 2016/17 financial year, the applicant reported payroll expense of $148,972 of which 2% is $2,979. The applicant has provided evidence of training expenditure incurred in the 12-month period immediately before lodgement of the nomination application being payment of $3,200 to TAFE NSW Sydney Institute. The Tribunal accepts the applicant’s submission that this training expenditure is the most recent expenditure by the business in the provision of training to its employees. The Tribunal is therefore satisfied that the applicant meets the requirements of r.5.19(4)(h)(i)(B)(I).
Accordingly, the requirements of r.5.19(4)(h) are 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.
Karen McNamara
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       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).

[1] Transcribed as prepared and submitted by the applicant

[2021] AATA 3110

14 July 2021

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