Shunkang Investment Aust Pty Ltd (Migration)
[2020] AATA 3970
•2 September 2020
Shunkang Investment Aust Pty Ltd (Migration) [2020] AATA 3970 (2 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Shunkang Investment Aust Pty Ltd
CASE NUMBER: 2002617
HOME AFFAIRS REFERENCE(S): BCC2017/2257885
MEMBER:Cathrine Burnett-Wake
DATE:2 September 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 2 September 2020 at 4:44pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Chief Executive or Managing Director – financial capacity to maintain term of employment – current financial statements, company tax returns and BAS – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 August 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 26 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 in the occupation of Chief Executive or Managing Director (ANZSCO 111111).
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because they had formed the view the nominator had not provided any realistic verifiable evidence to demonstrate that they will be able to comply with the requirement of providing 2 years fulltime permanent position to the nominee.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the nominator based on the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review by its registered migration agent.
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.
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.
The identified occupation in the application is Chief Executive or Managing Director (ANZSCO 111111).
The Tribunal notes that the nominee has previously been granted two subclass 457 visas with the nominator in the position of Chief Executive or Managing Director (ANZSCO 111111) and the nominee has been undertaking the role since 2012 under the direct control of the nominator. Evidence has been given to the Tribunal regarding how and why the position is needed. This evidence coupled with the fact the nominee has been employed in the role since 2012 is enough to satisfy the Tribunal the nominator has identified a need to employ a paid employee to work in the position under their direct control.
Accordingly, the requirement in r.5.19(4)(a) is 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 is satisfied on the basis of the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the applicant is actively and lawfully operating a business in Australia, being a the operation of IGA supermarkets in country Victoria.
Accordingly, the requirement in r.5.19(4)(b) is 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.
The applicant is not involved in labour hire activities.
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 applicant has provided to the Tribunal a written contract signed 17 June 2017 which sets out the terms and conditions of employment and confirms the annual salary of $181,008.
The Tribunal has had regard to the employment contract between the parties. The contract confirms the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.
The Tribunal has had regard to the documents provided on review, including current financial statements, company tax returns and BAS.
The Tribunal has evidence before it that the turnover in the 2017-18 financial year was $6,250,910 with a net profit before tax of $781,313 and for the 2018-19 financial year was $8,721,273 with a net profit before tax of $144,880.
The Tribunal notes that the applicant’s business is profitable and financially viable.
On balance, the Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to maintain the nominee's salary as they have been doing since 2012.
The Tribunal is satisfied on the 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) is 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 Tribunal is satisfied from the documentary evidence provided that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
There appears to be no applicable award that covers the nominee, as such the Tribunal has consulted a range of sources of information, including the Payscale website ( ) report (accessed September 2020) which provides a salary range for a Corporate General Manager in Australia of $68,000 to $201,000, with the median salary being $113,737: .
The Tribunal is satisfied from the most recent salary survey information from and advertisements from seek.com.au that the salary package attached to the nominated position is within the range of salaries for the occupation.
On balance, the Tribunal is satisfied that the nominee's salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the original contract of employment provided to the Department for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than those that are/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.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirements of r.5.19(4)(f) are 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 Fair Work or any other government agency has taken action against the applicant in relation to workplace relation laws. As such, the Tribunal is satisfied that the applicant has satisfactorily complied with 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 (see legislative instrument IMMI 16/060 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.
The Tribunal has reviewed the position description provided as part of the application as well as further supplementary evidence supplied to the Tribunal regarding the position. Based on the position description that was provided and the further evidence, the Tribunal is satisfied that the tasks to be performed in the nominated position correspond with those listed within the relevant instrument for the occupation of Chief Executive or Managing Director (ANZSCO 111111) and will be performed in Australia. Further, and as already noted earlier in the decision, the applicant was previously granted two subclass 457 visas in the nominated occupation and has been undertaking the role with the nominator since 2012.
Evidence has been provided to the Tribunal of the applicant’s ability to meet training requirements.
Relevantly for this application, as the applicant had been in operation for at least 12-months prior to the application having been lodged, evidence in regard to training expenditure must be provided to demonstrate that the required expenditure for training, as prescribed in IMMI 13/030,[1] has been incurred. This applies regardless of the benchmark (A or B) the nominator seeks to satisfy in accordance with the instrument.
[1]IMMI 13/030 <
The applicant made claims that they had met ‘training benchmark B’ in accordance with IMMI 13/030 and had spent the equivalent of 1% of their payroll on the training of Australian citizens or permanent residents.
The financial statements demonstrate that recent salaries, wages, and superannuation contributions combined, total $1,118,855. As such, 1% of the applicant’s payroll equates to $11,118, which is the minimum amount the applicant must demonstrate they had spent to meet ‘training benchmark B’.
The nominator has provided evidence to the Tribunal that they spent $12,700 in the recent period. Remittance receipts have been provided. The Tribunal is satisfied that the training expenditure is in accordance with IMMI 13/030, and can be claimed towards meeting ‘training benchmark B’. As such, the Tribunal is satisfied that the applicant has met and exceeded the required expenditure for training, as prescribed in IMMI 13/030.
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.
Cathrine Burnett-Wake
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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