TRADITIONAL MEDICINE GREENHILLS PTY LTD (Migration)

[2023] AATA 121

TRADITIONAL MEDICINE GREENHILLS PTY LTD (Migration) [2023] AATA 121 (11 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TRADITIONAL MEDICINE GREENHILLS PTY LTD

REPRESENTATIVE:  Mr Hang Chen (MARN: 0854662)

CASE NUMBER:  1917060

HOME AFFAIRS REFERENCE(S):          BCC2018/928540

MEMBER:Joanne Bakas

DATE:11 January 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 11 January 2023 at 4:51pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – genuine need for the employment – updated financial information – financial capacity to employ the nominee for at least two years – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, rr 5.19, 5.37

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 27 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because they were not satisfied the nominator had demonstrated a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

5. Mr Lingji Zeng the director of Traditional Medicine Greenhills Pty Ltd appeared on behalf of the applicant before the Tribunal on 15 November 2022 via audio and video conference on MS Teams to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bin Wang, who is the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing via MS Teams.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Term of employment of the visa holder: reg 5.19(4)(d)

9. 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.

10. The oral evidence at hearing as well as the documents submitted by the applicant to the Tribunal, included financial statements and company tax returns for the 2019/2020 and 2020/2021 financial years. The applicant also provided Business Activity Statements for the 2021/2022 financial year.

11. The Tribunal notes that the documents show that the applicant made a loss of about $25,000 in the 2019/2020 financial year with a carried tax loss of $34,920. The applicant made a profit of about $35,500 in the 2020/2021 financial year. Both years included jobkeeper and cash boosts of $40,000 in 2020 and $76,564 in 2021.

12. The evidence of the applicant at hearing also included that the nominee left Australia in July 2020 and remains off shore. As such he has not been employed since that time.  The applicant explained that he operates two sites, one in Alice Springs where the nominated position is situated and one in Sydney. The applicant also stated that in the Alice Springs store he does not currently employ anyone on a full time basis.

13. At the hearing the Tribunal put to the applicant that it had some concerns regarding the applicant’s ability to be able to pay a full time salary for the next two years given the losses and small profit in the 2020/2021 year. The applicant stated that they access personal funds when the business funds are insufficient. The Tribunal requested evidence of the funds for shortfalls. The applicant provided a copy of a proof of balance in the name of Mr Zeng dated 2 December 2022 showing a savings account and a number of term deposits totalling $76,160.69. The applicant also provided Business Activity Statements for the 2021/2022 financial year. These indicate that the revenue for the 2021/2022 year will be less than the previous financial year.

14. The Tribunal has reviewed and considered the information the applicant provided to the Tribunal.

15. In undertaking this assessment, the Tribunal is aware that the concept of ‘onus of proof’ is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as necessary to enable a decision maker to establish the relevant case, and in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decision maker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.

16. The Tribunal finds that providing a document showing a bank balance at a point in time is insufficient to substantiate to the Tribunal’s satisfaction that the claims of the applicant regarding access to funds, should profitability/cash flow be an issue, is sufficient. The Tribunal cannot be satisfied that the funds are not committed elsewhere, for example.

17. Even if these funds are not committed elsewhere, the Tribunal remains concerned that the business will not be able to fund a full time salary for the next two years.

18. Having considered all of the evidence before it, including the applicant’s oral evidence at hearing and the submitted documents and submissions before and after the hearing, the Tribunal’s concerns regarding the applicant’s ability to commence employing the nominee for at least two years in a full time capacity, were not allayed.

19. Accordingly, the Tribunal cannot be satisfied that the requirement in 5.19(4)(d) is met.

20. The Tribunal notes that the delegate refused the nomination on the basis that r.5.19(4)(h)(ii)(B) was not satisfied. However, as the Tribunal has found that the requirement in r.5.19(4)(d) has not been satisfied, it is not necessary for the Tribunal to consider any of the other requirements for approval of the nomination.

21. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

22. The Tribunal affirms the decision under review to refuse the nomination.

    Joanne Bakas
    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 an identified person, as  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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).