The Trustee for Y & B Family Trust (Migration)
[2020] AATA 99
•20 January 2020
The Trustee for Y & B Family Trust (Migration) [2020] AATA 99 (20 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: The Trustee for Y & B Family Trust
CASE NUMBER: 1803739
DIBP REFERENCE(S): BCC2016/2287764
MEMBER:Terrence Baxter
DATE:20 January 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 20 January 2020 at 12:10pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Office Manager – need for paid employee identified – requirement administrative in nature – location of position – Departmental visit of business premise – current place of business – genuine need – operational side of business – free up more time for international expos and exhibitions – turnover and staffing levels – 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 on 24 January 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).
The applicant, the Trustee for Y & B Family Trust, applied for approval on 7 July 2016. The applicant nominated Shuhan Zhang (the nominee) in the position of Office Manager. 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 r.5.19(4)(a)(ii) of the Regulations because the applicant had not identified a need for the applicant to employ a paid employee to work in the position under the applicant’s direct control.
Messrs Young Yip as Business Development Manager of the applicant and Ronald Lai Ho But as Director of the applicant appeared before the Tribunal on 11 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mr Shuhan Zhang.
The applicant was represented in relation to the review by its registered migration agents. The representatives 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 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.
Evidence presented before the hearing
The applicant provided to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) a number of documents including:
·The applicant’s 2015 Trust income tax return.
·The applicant’s Business Activity Statements for the June 2015, December 2015 and June 2017 quarters.
·The applicant’s financial statements for the years ended June 2015 and June 2016.
·A lease proposal and acceptance dated 30 May 2016 together with a lease dated 18 June 2016 for premises at Shop 4, 954 Kingston Road, Waterford West, for a term of three years from 1 July 2016.
·A Business Plan of the applicant prepared 14 March 2016.
·An extract from the Planning Scheme of the Logan City Council 2015.
·An extract from the Trust Deed of the Y & B Family Trust dated 30 August 2000.
·ABR extracts for the applicant dated 2 June 2016 and 20 November 2017.
·A Regional Certifying Board certificate of Chamber of Commerce & Industry Queensland dated 7 July 2016.
·Two payslips of an unnamed employee of the applicant (said to be an Office Manager from another branch) for pay periods in May 2016.
·Employment Contract dated 3 June 2016.
·An ASIC search in respect of business name BPPG dated 20 November 2017.
·Online job advertisements from other employers dated March and April 2016.
·The applicant’s online job advertisement dated 2 May 2016.
·Market salary evidence from PayScale dated 13 April 2016.
·Applicant’s submission dated 2 June 2016 regarding recruitment efforts, together with disqualified resumes.
·A submission from the applicant dated 15 December 2017 in response to a natural justice letter, together with a number of attachments.
·A submission from the applicant’s then representative dated 18 December 2017 in response to a natural justice letter, together with a number of attachments.
Evidence presented at the hearing
Mr Yip gave evidence regarding the business operations of the applicant. He stated that the applicant, trading as BPP Group, was primarily involved in project marketing. He said that they did not operate in the same way as a traditional real estate agent, selling vacant land and established homes and units, but that the company sold house and land packages “off‑the-plan”. He said that the builders paid his company a commission on the sales. The company was involved in the residential market only and did not engage in the sale of commercial properties.
Mr But gave evidence relating to his telephone conversation with an officer of the Department on 2 August 2017. He did not give evidence regarding the day-to-day operations of the company, leaving this to the Business Development Manager, Mr Yip.
On the day of the hearing, the applicant provided a large number of documents to the Tribunal, including the following:
·The applicant’s financial statements for the 2016 and 2017 financial years.
·The applicant’s Activity Statements for the period from October 2015 to July 2019.
·Evidence of the applicant’s sponsorship of and involvement in various events.
·A tenancy agreement for the premises at Waterford West for a period of one year from 1 July 2019 and documents evidencing payment of expenses for that property, including signage.
·Evidence of rental payments by the applicant for premises at 88 Creek Street, Brisbane, from November 2016 to May 2017.
·Documents (untranslated) and photographs relating to Mr Yip’s business travel overseas.
·Two statutory declarations by occupants of properties adjacent to the Waterford West property as to activity at the premises.
·The applicant’s Business Plan dated March 2016 including Organisational Chart.
·Material relating to the launch of a project in which the applicant was involved.
·Photographs of the applicant’s staff and staff meetings.
·The applicant’s Payroll Activity Statement dated September 2019.
·Extracts from the applicant’s bank statements evidencing payment of salaries.
·An invoice dated 2 August 2017 addressed to applicant for signage at the Waterford West premises.
·An invoice dated 11 July 2018 addressed to applicant for office equipment at the Waterford West premises.
·A Certificate of Currency of business insurance policy dated 23 July 2016 for the applicant’s business referring to the Waterford West address.
·A copy of an SMS message dated 19 June 2017 regarding signage at the Waterford West premises.
Documents produced after the hearing
After the hearing, the applicant produced the following documents to the Tribunal:
·An ASIC business names extract in respect of the name BPPG dated 17 September 2019.
·An ABR ABN Lookup extract in respect of the applicant’s ABN.
·An Employment Agreement dated 13 September 2019 with Organisational Chart.
·The applicant’s 2017 and 2018 tax returns.
·The applicant’s Activity Statements for the 2018/2019 year.
·A further copy of the applicant’s submission dated 2 June 2016 regarding recruitment efforts, together with disqualified resumes.
·A submission from the applicant’s representative dated 18 September 2019.
After the hearing, the Tribunal had concerns regarding certain aspects of the application. Those concerns are dealt with more fully later in these reasons. The concerns were put to the applicant in the form of a letter under s.359A of the Migration Act 1958 (the Act) after the hearing. In response to that letter, the applicant provided further documents to the Tribunal, being a statutory declaration by Mr Yip dated 19 December 2019 with the following annexures:
·An extract from a Google map and a photograph of a residence situated at 5/32 Jephson Street, Toowong, Queensland.
·A further extract from the Trust Deed of the Y & B Family Trust dated 30 August 2000.
·An extract from a Google map and a photograph of a residence situated at 193 Vulture Street, South Brisbane, Queensland.
·An ASIC search in respect of the company Ocean International Pty Ltd dated 17 December 2019.
·Photographs of premises said to be situated at Shop 78, Sunnybank Plaza, Sunnybank, Queensland.
The applicant also produced to the Tribunal after the hearing its 2018/2019 financial statement.
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.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry Stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.19(2) and r.5.37(4)). The application included a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision-maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of r.5.19(4)(a)(ii) and, for example, r.5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employee a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to satisfy r.5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under r.5.19(4)(h)(ii)(B) later in these reasons.
[1] Dictionary.com (accessed January 2020).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. “the employer nomination is made by an employer in respect of a need for a paid employee”. Whilst on the one hand r.5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Office Manager. The online job advertisement placed by the applicant on Seek on 2 May 2016 and produced to the Department refers to the applicant setting up its first physical office at Waterford West (having previously used temporary offices on the site of development projects). The advertisement states that this new office will be their point of contact for clients, and goes on to state – “We are seeking a suitable personnel [sic] to fit into the role of Office Manager.” The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Office Manager under the applicant’s direct control such that r.5.19(4)(a)(ii) is met. The Tribunal will consider later in these reasons whether the applicant has established a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control for the purposes of r.5.19(4)(h)(ii)(B).
Having found that r.5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in r.5.19(4)(a) is met.
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 applicant is actively, lawfully and directly operating a business in Australia.
The applicant produced various documents to the Tribunal including taxation returns, current Activity Statements and financial statements. Mr Yip gave evidence of the business activities of the applicant, based in Waterford West, Queensland. The applicant also produced a number of photographs and documents regarding the business activities of the applicant and development projects with which it has been involved.
The applicant’s tax returns and financial statements show that the applicant had income as follows:
Period
Income
2014/2015 year
$1,604,011
2015/2016 year
$1,701,213
2016/2017 year
$1,888,818
2017/2018 year
$1,725,628
2018/2019 year
$4,342,898
Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely a real estate project marketing business.
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.
There is no evidence before the Tribunal to suggest that the applicant is engaged 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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Employment Agreement dated 13 September 2019 produced to the Tribunal provides that the agreement is to come into force after the nominee has formally been granted his visa and that it shall remain in force for a minimum of 24 months. The position description is Office Manager. The agreement further provides that the nominee’s hours of work are to be a minimum of 38 hours per work and that it is a full-time position. The agreement does not expressly exclude the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The Profit and Loss Statements provided by the applicant to the Tribunal disclose the following trading figures:
Period
Income
Expenses
Profit
2014/2015 year
$1,604,011
$1,233,463
$370,548
2015/2016 year
$1,701,213
$1,534,078
$167,134
2016/2017 year
$1,888,818
$1,406,280
$477,538
2017/2018 year
$1,725,628
$1,518,097 (NOTE)
$207,531 (NOTE)
2018/2019 year
$4,342,898
$3,552,868
$790,030
(NOTE – the 2017/2018 expenses and profit are stated above without reference to a capital loss incurred in that year, and accordingly reflect the applicant’s trading expenses and profit in that year.)
Mr Yip provided an explanation of the applicant’s reduced profit in the 2017/2018 year, calculated without reference to the capital loss. He said that restrictions had been placed on foreign borrowing and that the property market in Brisbane had fallen as a result. The applicant’s turnover fell and the company was forced to pay higher commissions, reducing the profit compared to the previous year. He said that the business was continuing to grow and this has been borne out by the 2018/2019 financial statement which was provided after the hearing and which shows a significant increase in profitability over the previous year.
The nominee’s salary according to the Employment Agreement dated 13 September 2019 is $30.36 per hour or $60,000 per annum, plus superannuation of 9.5%.
On the basis of the evidence presented including the profits disclosed in the financial statements, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Office Manager in accordance with the Employment Agreement and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.
As the requirements of both r.5.19(4)(d)(i) and (ii) are met, 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 application to the Department states that there was one Australian employee in the workplace doing the same work as the nominee at the time of application. Mr Yip confirmed that at the time of the application, the applicant was operating an office in Brisbane and had only recently taken up a tenancy at the Waterford West location. The Organisational Chart attached to the original Employment Agreement envisages that an Office Manager would be employed both in Brisbane and at Waterford West. The application states that the Clerk – Private Sector Award applied to the relevant Australian employee and that the salary payable to that employee was $50,000 per annum. The salary proposed to be paid to the nominee according to the application was identical to the salary paid to the Australian employee doing the same work.
Mr Yip gave evidence that the applicant had closed its Brisbane office and that the applicant has no Australian citizen or permanent resident working full-time in the position of Office Manager at the present time. He was asked about the requirement that the terms and conditions of employment be no less favourable than those that would be provided to an Australian citizen or permanent resident. Originally, he appeared to be somewhat confused by the question and stated that most applicants for the position wanted a higher salary than was being offered to the nominee. He then stated that he had conducted enquiries into the average salary payable to a business manager in the Asian community and had found that the figure was between $50,000 and $52,000 per annum. He stated that the nominee would be paid a salary at least equal to the salary specified in the relevant Award.
The Employment Agreement provides that the applicant will pay to the nominee a salary of $60,000 per annum, plus superannuation of 9.5%. This is stated to be above the Award.
The applicant produced to the Department evidence in the form of copies of online job advertisements for the position of Office Manager in the Sydney area. A number of positions were advertised on the portal seek.com.au in the range of $40,000.00 per annum to $65,000.00 per annum. The applicant also produced to the Department evidence that the average salary of an Office Manager was between $43,000 to $76,000.
Based on the evidence available and having regard to the fact that the salary originally proposed for the nominee was identical to that being paid to the salary being paid to the Australian employee of the applicant, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that 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 evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any 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 to suggest that the applicant has an unsatisfactory record of compliance with workplace relation laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
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 17/058), 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.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia; and
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control
The application to the Department stated that the position was to be filled at Shop 4/954 Kingston Road, Waterford West, Queensland 4133, a location in regional Australia according to the relevant instrument. The delegate of the Department found that the applicant had not identified a need for the applicant to employ a paid employee to work in the position of Office Manager under the applicant’s direct control. Although the delegate’s decision was made under the similarly worded provision in r.5.19(4)(a)(ii), the issues upon which the decision was made bear consideration in this application under these later provisions.
The delegate noted that Departmental Officers had visited the Waterford West premises on 2 August 2017 and had found that the premises were closed and that there was no signage or other evidence that the applicant operated a business from that location. The Department forwarded a natural justice letter to the applicant, to which the applicant responded with submissions and documentation. Ultimately, the delegate was not satisfied by the response and made the decision in respect of which the applicant has sought review.
Mr Yip gave evidence at the hearing about significant changes to the business operations of the applicant since the original application was lodged. He said that the company worked as a “Project Marketeer” with CBRE Group, an international real estate services and investment organisation from 2011 until November 2016. That relationship had soured in mid-2016 and he had looked to move to the Logan area as Brisbane was “land-short”. The tenancy of the Waterford West premises commenced on 1 July 2016. Mr Yip stated that the company had taken a month-to-month tenancy of premises at 88 Creek Street, Brisbane, from November 2016 until May 2017, until the shift to Waterford West was finalised.
He gave evidence that the Brisbane office closed in May 2017 and that all staff were now employed from the Waterford West office. He said that there were 12 to 13 permanent staff at that address, including six full-time administrative staff. There were also part-time administrative staff plus sales staff. He said that the administrative staff were mainly engaged in design of marketing material and the online listing of properties.
Mr Yip was questioned closely regarding the Departmental visit to the premises on 2 August 2017. He reiterated the explanation given to the Department and provided further evidence as to the circumstances of the lack of activity at the premises on that day. He confirmed that both he and Mr But were overseas at that time. He gave evidence that in his absence, members of his staff were heavily involved in preparation for three separate events, namely:
a.The University of Queensland Chinese Students and Scholars Association mid-Autumn Festival which was to be held during the month of September 2017. Mr Yip stated that the applicant was a major financial sponsor of this event and his staff were involved in preparation and rehearsals for this event from late July and early August 2017.
b.The opening launch of a development project in Kangaroo Point, Brisbane, which was to be held on 11 August 2017 and in respect of which the applicant was the exclusive agent. The Lord Mayor of Brisbane, Mr Graham Quirk, was to be the special guest at this event and Mr Yip wanted to make sure that it was properly planned.
c.A University of Queensland Open Day which was to be held on 7 August 2017.
Mr Yip gave evidence that these preparations required staff members to be absent from the business premises. The applicant produced documentary evidence to prove the applicant’s involvement in the mid-Autumn Festival and the project launch.
The Tribunal put to Mr Yip that the delegate of the Department apparently found it hard to believe that the applicant’s office would be left totally unattended on a working day. Mr Yip stated that it was not necessary for his office to be open in the same manner as a traditional real estate agent, because his business was mainly in project marketing. The company did not operate a rent roll and was not involved in the sale of second-hand residential properties. His marketing strategy was for clients to go direct to the land estate which was being developed. He said that most of the applicant’s work was done on Sundays.
Mr Yip also gave evidence regarding the lack of signage at the Waterford West premises at the time of the visit by Departmental officers. He stated (as he had in writing to the Department) that CBRE signage had been removed from the premises and replaced with new signage. The applicant produced to the Tribunal a copy of an SMS message from an employee of the applicant to Joyprint Signage Solutions dated 19 June 2017 approving an order for new signage and an invoice dated 2 August 2017 from that company for the signage. This evidence supports the applicant’s explanation that new signage had been ordered before the visit on 2 August 2017.
Having regard to all of the evidence, the Tribunal is satisfied that the applicant has satisfactorily explained the lack of activity at the premises on the day of the visit by Departmental officers. However, the Tribunal had concerns, from the evidence produced by the applicant, that the position would actually be located at Waterford West and that it may be located in Brisbane. This concern existed notwithstanding Mr Yip’s statement that the applicant’s Brisbane office had been closed. The concerns were based on the following evidence:
a.The ABN Lookup document for The Trustee for Y & B Family Trust which states that the main business location of the entity is postcode 4066 and that the entity has the business name BPPG.
b.The Business Names extract for BPPG which states that the Current Principal Place of Business for the business is 193 Vulture Street, South Brisbane.
c.In evidence, Mr Yip referred to the applicant’s website A search of this website provides a link to BPP Group, whose website provides the address of the business as Shop 78, Sunnybank Plaza.
As set out in paragraph 13 above, these concerns were put to the applicant in the form of a letter under s.359A of the Migration Act 1958 after the hearing. In response to the letter, the applicant provided a statutory declaration by Mr Yip stating:
a.That, concerning the reference to postcode 4066, his mother had been a previous director of the applicant and had used her residential address as the main business location of the company. He produced an extract from a Google map and a photograph of a residence situated at 5/32 Jephson Street, Toowong, Queensland, which has postcode 4066.
b.That, concerning the reference to 193 Vulture Street, South Brisbane, Mr But had attended to the registration of the business name BPPG. At the time, the company did not have an accountant whose office could be used as the current place of business of the company. Accordingly, Mr But had used his residential address in South Brisbane. Mr Yip produced an extract from a Google map and a photograph of a residence situated at 193 Vulture Street, South Brisbane, Queensland.
c.That, concerning the reference to Shop 78, Sunnybank Plaza, this is a display location for homes being marketed by the applicant. He stated that the location is used for staff members to hand out promotional material and that it is a requirement of the developer that the display is maintained. He stated that this has never been the official place of business of the applicant, which is at Waterford West. He produced photographs of premises said to be situated at Shop 78, Sunnybank Plaza. Although these photographs do not show that the location depicted is in fact at Sunnybank Plaza, they do depict a display location and the Tribunal accepts that they are located at the address stated by Mr Yip.
Although the applicant’s response displays instances of looseness by officers of the company in identifying the main business location and current place of business of the company, the Tribunal is satisfied by the applicant’s response and finds that the position of Office Manager is located at Waterford West, in regional Australia. Accordingly, r.5.19(4)(h)(ii)(A) is met.
Mr Yip gave evidence of the need for the applicant to employ an Office Manager. He stated that, as Business Development Manager of the company, he was attending to office management issues at the present time, but that he wanted to free up more of his time for international expos and exhibitions. He said that he was responsible for the strategy and planning of the business and that he was the major driver of the company’s profitability. He had recently visited five cities in China within one week and needed a business manager to take the pressure off him. He stated that the applicant needed a lot of sales to generate its turnover.
He gave evidence that the applicant currently has a permanent staff of 12 or 13 employees plus part-time employees. There are seven or eight administrative staff plus sales staff. He further stated that the Office Manager would look after the operational side of the business and could also take over some of his own role as Business Development Manager, as he could not do it all. He said that if the business had an Office Manager for five or six days per week, they could put on more staff.
The Tribunal queried whether Mr But, as director of the applicant, could handle the duties of Office Manager. Mr Yip stated that Mr But was more of a scholar than a business manager and that he was being trained more for business presentations than office management.
The Tribunal accepts that a company having the turnover and staffing of the applicant has a need for an Office Manager. The Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in the position of Office Manager under the nominator’s direct control. Accordingly, the requirements of r.5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The applicant produced evidence to the Department of an online advertisement placed with seek.com.au dated 2 May 2016 for the position of Office Manager with the applicant. The applicant produced a statement as to the result of the recruitment effort, together with copies of resumes of nine unsuitable applicants. The applicant set out the reasons that all respondents to the job advertisement, apart from the nominee, had been rejected.
Mr Yip stated at the hearing that most of the applicant’s clients and all of the applicant’s agents were Chinese-speaking and that it was desirable that the Office Manager was fluent in that language.
The Tribunal also has regard to the certificate of the regional certifying body, being the Chamber of Commerce and Industry Queensland, dated 7 July 2016, that the nomination satisfies the requirement set out in r.5.19(4)(h)(ii)(C).
Having regard to all of the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, r.5.19(4)(h)(ii)(C) is satisfied.
Regulation 5.19(4)(h)(ii)(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-paragraph
The occupation proposed by the applicant was Office Manager which has the 6-digit ANZSCO code 512111 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specific in ANZSCO for that occupation are as follows:
·contributing to the planning and review of office services, and setting priorities and office service standards;
·allocating human resources, space and equipment;
·assigning work to and monitoring work performance of staff;
·managing records and accounts of the office;
·liaising with professionals to coordinate office business and to facilitate resolution of problems;
·ensuring office equipment and supplies are maintained;
·ensuring compliance with occupational health and safety regulations;
·ensuring work complies with relevant government legislation, policies and procedures;
·coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision.
The duties of the nominee specified in the 2019 Employment Agreement are:
·Office automation with internet technology.
·Contact point by answering all calls.
·Coordinating and liaising with supervising staff including receptionists, sales agents, project managers, property manager, developer and other sub-contractors.
·Recordkeeping on all matters under the required government legislation, policies and procedures.
·Ensuring all office supplies and equipment are functional.
·Maintain communication when required.
·Ensure compliance with all regulations, occupational health and safety.
·Monitor all records and report to senior management if required.
As mentioned in paragraphs 63 and 64 above, Mr Yip gave evidence regarding the duties which would be carried out by the nominee if the application is approved and the nominee’s visa is granted. The nominee gave evidence regarding his duties. He said that Mr Yip had telephoned him after he applied for the position, and that Mr Yip had in the first instance spoken about payroll duties and other administrative matters. He said that he had not spoken directly with Mr Yip regarding other duties, but that he expected that, as Office Manager, he would be responsible for dealing with staff issues, arranging for payment of rent for the company premises and looking after office equipment needs.
Based on all the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Office Manager specified by the Minister in the relevant instrument, being IMMI 17/058. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 61 and preceding paragraphs above, the Tribunal is satisfied that the business operated by the applicant is located at 4/954 Kingston Road, Waterford West, Queensland, which is the same location as the address of the position to be filled. Accordingly, the requirements of r.5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in r.5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 68 above was submitted to the Department. Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, having regard to the above findings, 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.
Terrence Baxter
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
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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