UNIVERSAL TRADE PTY LTD (Migration)

UNIVERSAL TRADE PTY LTD (Migration) [2023] AATA 3713 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Universal Trade Pty Ltd
REPRESENTATIVE:  Mr Abhinav Goyal
CASE NUMBER:  1926895
HOME AFFAIRS REFERENCE(S):          BCC2019/2841568
MEMBER:Alison Mercer
DATE:26 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 26 October 2023 at 1:51pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Sales and Marketing Manager – adverse information disregarded – not satisfied that the nominated position could not be filled by an Australian citizen or permanent resident – not satisfied that the company had a genuine need for the relatively high level nominated position within its operations – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR
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 10 September 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Universal Trade Pty Ltd, applied for approval of its position of Sales and Marketing Manager on 3 June 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy regs 5.19(4)(f) and 5.19(9)(d) of the Regulations. The delegate was not satisfied that the company had a genuine need for the relatively high level nominated position within its operations, given the nature and scale of its operations. The delegate also noted that the applicant had unsuccessfully tried to nominate the nominee for this matter (Xiaoming Zhong) 3 times previously.
The Tribunal received a review application on 24 September 2019. It was lodged on behalf of the applicant by one of its directors, Mr King Fai Chu, and was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Willem Oostdyk, as the applicant’s representative and authorised recipient for correspondence. Subsequently, another migration agent/lawyer, Mr Christopher Levingston, was appointed to these roles. Ultimately, another migration agent, Mr Abhinav Goyal, was appointed to these roles.
On 10 January 2022, the applicant’s agent provided the following submissions:
…
Background
This is an Application for review of a decision to refuse a nomination made by Universal Trade Pty Ltd which is currently before the Tribunal…
The related and consequential visa refusal of the Applicant at first instance and the dependants (2) was ultimately made on the basis that the Nomination had been refused.
The basis of the refusal
The Nomination was refused because it was asserted that the requirements of Reg 5.19(4) were not met…
There is a concluding statement regarding the refusal:
…
‘Overall, I am not satisfied that the evidence provided demonstrates that there is a genuine need for the nominator to employ the identified person to work in the nominated position.
Consequently I do not consider that the nominator meets 5.19(9)(d) and as a result Subregulation 5.19(9) is not met and the nominator does not meet Subregulation 5.19(4).’
Relevant law
Please note that for the purposes of this application, paragraph 5.19(4) are procedural and ultimately turn on the following subparagraphs (my emphasis). To the extent the reference at pages 2 and 5 of the decision record to 5.19(4)(d) does not appear to be the basis of the decision and on its face appears to be an error.
Reg 5.19(9)(d)
Direct entry stream – additional requirements for approval
(9) If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a) the nominator is actively and lawfully operating a business in Australia;
(b) if the nominator’s business activities include activities related 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;
(c) the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d) there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e) the identified person will be employed on a full-time basis in the position for at least 2 years;
…
Submissions addressing the substantive issues
Form 1404 and the Approval are at Annexure B to this submission
The application was accompanied by a Form 1404 which constituted relevant and material evidence to the effect contemplated by the form itself:
‘To be completed by the relevant certifying body for Regional Sponsored Migration Scheme (RSMS) Direct Entry stream nominations only. Nominations for the Temporary Residence Transition stream and the Labour Agreement stream do not require a Regional Certifying Body (RCB) assessment. The relevant RCB is one which has coverage of the area in which the proposed nominee will work. Once this form has been completed please see the RCB user guide and instructions manual for information on how to submit this form.’
Further the Form also contains a declaration to the following effect:
‘As a body approved by the Minister for Home Affairs (in an instrument in writing) for the purposes of regulation 5.19(12)(f) I have assessed the nomination referred to in this document against the following requirements: - whether the identified person would be paid at least the annual market salary rate for the occupation, - whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator, and – whether the position can be filled by an Australian… who is living in, or would move to, the local area concerned.’
The relevant instrument
The application was made on 3 June 2019, the relevant instrument at the time of the making of the application was… IMMI 17/059… and the current instrument is IMMI 18/037…
Evidentiary weight?
Legislative instruments are part of the Statutory scheme and are delegated legislation with the same weight as a regulation and necessarily inform the decision making process. The absence of the required statutory evidence would necessarily cause the application to fail by reason the failure to meet the requirement at reg 5.19(12)(d), (f) and (g).
To assist the Tribunal I have attached the relevant regulation below.
…
In the alternative:
If we are to assume, for the sake of argument, that the statutory determination of the RCB is not dispositive then that in turn begs the question as to what role if any the determination of the RCB will play.
The decision maker asserts, in effect that taken the advice of the RCB into account, it is clear that they do not believe themselves to be bound by it.
Inevitably, the assertion of having ‘considered’ the RCB advice clearly does not reflect what happened. In this case the decision maker ignores the advice of the RCB and prefers their own assessment.
There is no indication of any consideration of the relevant policy guidelines.
Relevantly, the policy provides as follows:
(Highlighting in bold done by the author)
“Assessment by a regional certifying body
Application by the nominator for assessment by an RCB
Some RCBs have established processes specific to their organisations, for managing requests for assessment in regard to RSMS nominations.
These processes may include the completion of specific paper-based or electronic applications. Nominators intending to lodge RSMS nominations under the Direct Entry stream must comply with the specific requirements (if any) imposed by the relevant RCB in regard to making applications/requests for assessment.
If the application process involves the completion of an RCB specific form (alternative form), the nominator is not required to complete form 1404.
If an RCB does not have its own paper-based or electronic form, the nominator must lodge the request for assessment on form 1404.
Consideration of the advice provided by the RCB
Applicability and overview
This section, which discusses regulation 5.19(4)(h)(ii)(F), applies to RSMS Nominations under the Direct Entry stream.
Regulation 5.19(4)(h)(ii)(F) provides that a body (RCB) specified by instrument by regulations 5.19(4)(h)(ii)(F) purposes must provide advice as to whether the nomination satisfies certain specific regulatory criteria.
Although the Regulations do not stipulate that the advice provided by the RCB must be considered by the delegate, this requirement is implied.
This section provides policy guidance on how the advice of the RCB should be considered by the delegate in making the decision on the related nomination.
Consideration of the advice
Overview
The delegate must independently assess the nomination against all the criteria that have been assessed by the RCB in providing their advice.
The RCB will have specialised knowledge in regard to whether the position can be filled locally by virtue of their location, local knowledge and experience. The delegate may generally accept the advice provided in regard to this criterion, unless there is clear evidence supporting an opposing point of view.
If the delegate’s assessment in regard to this criterion is opposed to the assessment of the RCB, the delegate may wish to discuss their point of view with the RCB before moving to a decision.
The delegate would already have assessed whether a genuine need for the position exists as a part of the assessment against regulation 5.19(4)(a)(ii). Similarly, the delegate would have assessed whether the requirements in regard to the terms and conditions of employment have been satisfied in assessing the nomination against regulation 5.19(4)(e).
If the delegate’s view in regard to satisfaction of the criteria at 5.19(4)(a)(ii) or 5.19(4)(e) is opposed to the view of the RCB, the delegate may wish to contact the RCB and explain the rationale for their point of view.
Providing opportunity for comment
If the nomination is to be refused on the basis that the RCB is not satisfied that the position could not be filled locally (regulation 5.19(4)(h)(ii)(C)), it is likely that the delegate will rely on the advice provided by the RCB in making their decision. If this is the case, the nominator must be accorded procedural fairness and must be given an opportunity to comment on the advice provided by the RCB in this regard.’
…
Submission
It is submitted that the Policy is ultra vires the Act and regulations.
The wording of the regulation 5.19(3) is consistent with the requirements imposed by Section 55 of the Act and to the extent of any inconsistent the policy will be ultra vires the Act and the regulations and should be disregarded (Drake No. 2).
Conclusion
This is a case where you can comfortably find that the Applicant meets all of the requirements of regulation 5.19(3) and (4) of the Migration Regulations.
I trust you will find these submissions to be of assistance to the Tribunal...
…
7. On 20 September 2022, the Tribunal wrote to Mr Chu, via the agent, to invite him, pursuant to s.359(2) of the Act, to provide updated and current information to demonstrate that the applicant met all of the applicable criteria in r.5.19 (not just the criteria that the delegate found were not met). The Tribunal requested that this information be provided by 4 October 2022.
8. On 4 October 2022, the Tribunal received a response from Ms Rosita Luk, stated to be the sole director of the company, as follows:
…
I refer to your letter dated 20 September 2022,
A       Enclosed is a copy of AAT letter dated 20 September 2022. Pages 15 to 24. I am the sole Director, Secretary and Shareholder of Universal Trade Pty Ltd.
BEnclosed is ASIC search showing that I am the sole Director, Secretary and Shareholder of Universal Trade Pty Ltd which is downloaded from ASIC Portal. Page 25.
The Tribunal now requires updated and current information addressing in respect of a . decision to refuse our nomination application for Mr Xiaoming Zhong under r.5.19 of the Migration Regulations 1994 (the Regulations).
You have provided us the example of the type of information in which I should provide to the Tribunal:
1           Information about the identity of any person authorised to speak and make decisions on behalf of the applicant;
•If the applicant is a company or registered business, an ASIC company or business name extract (. you can see from "B" of the above - Rosita Luk is the sole Director and Secretary of Universal Trade Ply Ltd and is the authorised person to speak on behalf of the company.
2       If the applicant is a company or registered business, current and historical information about its owners or office holders' registration details;
•An ASIC current and historical extract (. I consider the questions 1 & 2 are one of the same questions, so my reply is as follows:-
CEnclosed is the Current & Historical Company Extract of Universal Trade Ply Ltd which is paid extract searches. Pages 26 to 35.
DCurrent details of ABN 86 105 072 946 for Universal Trade Ply Ltd. Page 36.
EBusiness name details of "Kogarah Golden Chopstick" Pages 37 to 39.
FBusiness name of details "Lucky Store". Page 40.
GBusiness name details of "masinlu grocery store". Pages 41 to 43.
Please note that we have changed the business model from wholesale and retail into digital tech sale and farming products due to Covid.
We are now mainly concentrate to have central kitchen to distribute pre cooked products to restaurant and food court and also supply and deliver goods to restaurant and food court rather than retail, farming and restaurant.
We have engaged Caremore Eduction to carry out a research, the research showed that Westfield Shopping Centre supermarket mainly with Asian products, install children facility mainly with intention to attract kids so their parent will shop at Westfield.   Many coffee shop, food court, clothing, shoes store, medical center, flower store and beauty products. Caremore discussed with the management of Westfield why so many Asian products in supermarket, the replied was that they are in high demand. The research showed that Roseland intends to provide multi cultural business, salon and beautician and target middles east and mausoleum disciples but this shopping centre lack of pork and Asian food because they believe that customers did not eat pork and Asian products were not in demand. Their business model is different to Westfield. Caremore also carried out the research in Bargo, Orange Parks, Newcastle, Hunter Valley, Brisbane and Queensland. Each suburb has their own characters.
Caremore's conclusion is that Covid changes the needs of health products and also online shopping. People nowadays are working at home and only goes to office on occasion. Growing health plant is good business for the future business model.
Out restaurant closed in July 2022 due to the main Chef died of Cancer this year. The supermarket closed due to Covid, the government demands to close the shop and also when staff have Covid must quarantine for 14 days. We have to change the business mode, from Restaurant to Central Kitchen and also of products by ETechsale as this business model have higher profit margin and accommodate the Covid situation, We only supply to our regular customers which are as follows:-
1Little Hong Kong Merryland.
2Little Hong Kong Marrickville.
3Little Hong Kong Bankstown.
4Jim Malaysia at Castle Tower.
5Jim Malaysia at Town Hall.
6Jim Malaysia at Charlestown.
7Kowloon Cafe at Chinatown.
8Kowloon Cafe at Burwood.
9Kowloon Cafe central kitchen at Kogarah.
10Kowloon Cafe at Eastwood.
11Hong Kong family at Bankstown.
12Chinese Asia Food at Roseland.
13Chinese Asia Food at Shoalhaven.
14Have a Rice at Parramatta.
15Have a Rice at Miranda.
16Have a Rice at Merryland.
17Sunbright Aluminium Ply Ltd at Punchbowl.
18Tenda at Punchbowl.
19Sunline Glass at Revesby
20Shundle Restaurant at Hurstville.
21Cantons at Chinatown.
22Cantons at Burwood.
23Cantons at Eastwood.
24Faji Trading Ply Ltd at Moorebank.
In that business model which will reduce cost and push up the profit margin.
3Information about the applicant directly operating an active and lawful business in Australia, including its financial circumstances;
•The applicant's lodged tax returns for the last two full financial years business activity statements that have been lodged with the ATO for the last 24 months and financial statements prepared in accordance with Australian accounting standards, including profit and Joss statements and balance sheets, for the most two financial years.
Enclosed are as follows:-
HUniversal Trade Ply Ltd Financial Statement for the year ending 30 June 2022 which including information of financial for the year ending 30 June 2021.
Pages 44 to 55.
Activity statement as from 1 July 2020 to 30 September 2022. Pages 56 to
82.
Please note that ATO demands our company on monthly BAS since 2019 because ATO considers our company's wages tax is in the level of monthly BAS, since then our company's BAS is on monthly lodgement, not quarterly lodgement. We have contacted ATO requested quarterly BAS, not monthly as it is too much paper work for the company, but the reply from ATO was it was generated by ATO automatic system based on the past quarterly BAS information which is out of ATO's control. ATO further explained that whenever PAYG is over certain level, the BAS would automatically change from quarterly to monthly requirement. We even argue that our company is not big enough for monthly BAS requirement, but ATO internal system
considered our company was in the level of monthly requirement due to the wages level is above the bench mark set by ATO. We lost the argument under the ATO's authority. We are required to lodge monthly BAS.
JSince changing from quarterly BAS to monthly BAS as from 1 July 2019 onward, all the superannuation to employees were changed from quarterly to monthly as well.
Superannuation record as from 1 May 2020 to 30 September 2022. Pages 83
to 110.
KSuperannuation payment history downloaded from ATO super clearing house as from 1 July 2016 to 30 September 2022. Pages 111 to 115.
LCompany Tax returns as from 2018 to 2022 downloaded from ATO portal.
•2021-22 Company - pages 11610118.
•2020-21 Company - pages 119 to 121.
•2019-20 Company - pages 122 to 124
•2018-19 Company - pages 125 to 127
•2017-18 Company - pages 128 to 130
MCompany lodgement history downloaded from ATO portal as from 2009 to 2022. Pages 131 to 132.
NIncome Tax Transactions downloaded from ATO portal showing no outstanding to ATO up to 30 June 2022. Page 133.
0Activity Statement Transaction downloaded from ATO portal showing no outstanding to ATO up to 30 September 2022. Pages 134 to 136.
4        Information about the application's current organisation structure and where the nominated position sits in relation to that structure;
•An organisational structure chart that includes all of the applicant's current and proposed employees, their position title/duties and their immigration status (ie. Australian citizen, permanent resident or temporary visa holder).
PEnclosed is the Organization Chart. Page 137.
Please note that farming management is totally different to the Sydney CBD business management. All the farmers are very smart in their own way at their work, they calculated every single products's value and analysing the weather for each products, it does not matter they are juvenile to adult. We have attended the farming course, the juvenile drove the tractor like Sydney CBD driving a car. They knew the direction of the wind and which soil was good for the planting. From the TAFE training, we discovered that all the young kids knew how to install an electrical fence and also how to control the sheep inside the fence as sheep can jump from the fence to the other side very easily. They knew how much water is required for the cows. They can differentiate the Angus, Jersey, Holstein Friesian, Ayrshire, Red Breeds & lllawarra, Cow Breeds and Milk, flowers, vegetables etc...
In accordance with Caremore research that farmers are simple, they don't like responsibility or management. They like sub-contracting work and do one job and get pay. They do not like to report to superior nor work at a regular hours. They are happy if they own a house and have a habit farm and some income to support them day to day living and they are not interested any politics, education, nor become professionals.
The only way you can recruit them by providing them sub-contracting work and respect them.
In accordance with Caremore's research, farmer in sub-contracting work is far more income than a full time employees. It is impossible for our company to recruit experience skillful farmer and recommend our company to continue the sub-contracting direction.
QEnclosed is one of the sub-contractor (lronbark Ag Ply Ltd - Tim Carroll) invoice for the sum of $203,018.75 for the monthly of August 2021 and payment confirmation of $203,018.75 together with invoice for your reference. Due to our daily limit is maximum transfer of $100,000, so it has to divide into three payments to complete the payment of invoice of $203,018.75. Page 138 to 145.
Please note that the farmer Tim Carroll (Ironbark Ag Ply Ltd) was awarded by NSW Parliament as Farmer of the year in December 2020.
Tim Carroll also organising the management of farm for our company's farm, so beside the above invoice, we have to pay Tim Carroll from time to time.
REnclosed is one of the sub-contractor invoice from Ironbark Ag Ply Ltd for the sum of $27,852 for September 2021 and payment confirmation. Pages 146 to 148.
SEnclosed is the proposal from lronbark proposed for the sum of $2,340,140 for the infrastructural of Green House farming in August 2021. We are currently in process of liquidated some of our assets in order to carry out the infrastructure for Green House. We believe by mid-Oct, 2022 we will have the funding of $2 million. We also planned to speak to Council to seek assistance for the roadwork as Council placed a condition to supply and placement of spec gravel (roadway and intersection, 150001) which would cost $561,000 and Bulk earthworks (45000m3) which costs $594,000. Pages 149 to 153.
Until the fund hit into our company account on 14 Oct 2022, we will make a trip to Orange to discuss the farming production with Local farmers.
The farm caretakers were Kristy Sansom and Brendan Sansom. They are sub-contractor. Unfortunately, Tim Carrol was not happy with Kristy and terminated them and replaced a new care taker. At this stage, we have no idea the new caretakers name due to Covid, flooding and fire, we are unable to attend the farm on regular base since October 2021 to present.
The soil planting work was done by the opposite Apple farm owner, Like Mike, he charged the company for his work from time to time.
TEnclosed are the PAYG payment summary for the year ended 30 June 2020, 30 June 2021 and 30 June 2022 for your reference.
•PAYG payment summary for the year ended 30 June 2022 Pages 154 to 170.
•PAYG payment summary for the year ended 30 June 2021 Pages 171 to
188.
•PAYG payment summary for the year ended 30 June 2020 Pages 189 to 196.
Please note that the farmer sub-contractor are paid much higher than any employees. Farmer sub-contractors are excluded in the organisation chart. Those local farm sub contractors have been working at the company farm for many years.
In due respect, the government's current salary bench mark will not support an employee's living standard in accordance with caremore research, housing in NSW are very expensive, tuition costs for children and also medical and dental costs are far too high for a family to maintain.
In accordance with Caremore research that bench mark salary set for the government are lack of business understanding. Local farmer is not interested in salary bench mark, they are far more interested in sub-contracting work.
Housing is the priority for Australian residents and skilled workers from overseas.
5        Information about the roles and duties of the nominated position and how they correspond to the nominated occupation's position description in ANZSCO;
•Job descriptions, work samples, emails, correspondence and other examples of the daily tasks performed in the nominated position, and also the nominated occupation's position description in ANZSCO (go to and type the nominated occupation's 6 digit ANZSCO code number into the 'search function).
In accordance with the Australian Bureau of Statistics, ANZSCO 131112 Sale and Marketing Manager outlines as follows:-
Advertising and Sales Managers plan, organise, direct, control and coordinate, advertising, public relations, sale and marketing activities within organisations.
Indicative Skill Level"
In Australia and New Zealand::
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks include"
•formulating and implementing polices and plans for advertising, public relations, sales and marketing in consultation with other Managers
•directing the development of initiative for new products, marketing and advertising campaigns
•organising and controlling sale activities by settling product mix, geographical sale areas and customer service standards
•directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors
•directing sale methods and arrangements by setting prices and credit arrangements
In reply to your query, how the nominated position and how they correspond to the nominated occupation's position.
Mr King Fai Chu, was our previous director and shareholder of our company. Due to Covid- he could not return to Australia regardless, he is permanent resident and his family members all are Australian citizen.
The farm at 621 Canobolas Road, Canobolas is owned by our associated company which Rosita is also director and shareholder of the associated company and the farm land has no mortgage with four water licences.
Rosita is qualified solicitor and tax agent and own the following business in Australia under different entities ownership:-
1Restaurant
2Grocery Store
3Accounting firm
4Legal firm
5Logistics business.
6Farming business.
7Property development.
8Property investments.
Rosita's husband is CPA, her daughter is Charter accountant.
The overall employees in all entity over 100 and the sub-contractors over 20.
Some of the companies are under state payroll tax because the wages over millions.
Our business in Australia also associates international, such as England, USA, Hong Kong and China, mainly for professional services such as probate needs to transfer overseas property to Australian beneficiaries etc...
The sponsor applicant, Mr Zhong, has been working for our overseas associated companies for over 20 years. We could not find a suitable employee in Australia to carry out the task which nominee is able to perform, that is the main reasons, we wish to sponsor him. As you can see from 2 and 4 of the above. Farmers are very capable in their work at our farm, but they are only interested in sub-contractor work, not involving our companies management role.
We know the nominee over the years in person and also his performance is at our satisfactory, he was studying in South Australia, have work in Australia and understand our business model and his duties will be the similar as he perform in overseas. He needs to market our products to public, recruit workers, train the workers, expand our business and carry out market research and inform us the demand on products, so we can be flexible to adjust to accommodate the market
demand and set a business model to fit the demand. Then the Business will be in a much better management and development level.
Our company needs skill experience workers in Australia to delegate the workload.
The company needs to set up a business model for farming to grow health products, recruit experience doctors and scientists to assist the health product market. Farom workers who work at the farm and those farm products need to be promoted in public. Our company needs new idea and new business model to make profit for the company.
The nominee has been known by our company for past 20 years, we consider he is the most suitable person for that position for that reasons.
6       If the position requires a licence or registration of a particular kind, or membership of a particular professional body, information about whether or not the nominee holds that licence, registration or membership;
•a coy of a valid and current licence, registration or professional body membership held by the nominee.
No licence is required by our company for that position, the company needs experience skilled worker to assist us to expand the business.
The nominee was a member of the Marketing Association of Australia New Zealand. The nominee's licence, membership with professional body was inside the attachment "X" - please refer to pages 204 to 235.
7       Information about the terms and conditions of employment in the nominated position, including whether they are more or less favourable than those provide for an Australian citizen or permanent residence performing equivalent work in the same workplace at the same location, and whether the nominee will be employed on a full time basis for at least 2 years with terms and conditions not expressly excluding the possibility of extension;
•A current employment contract in respect of the nominee or letter of engagement that complies with relevant awards for the nominated position (if any).
UEnclosed is the employment agreement. Mr Zhong will be at $124,800 per annum plus super and annual leave.
VThe project manager, Yee Choon Choong is at $4,800 per fortnight, annually is $124,800 per annum plus super and annual leave.
WThe accountant, Mr Martin Ma, is at $7,000 per fortnight, annually is $182,000 per annum plus super and annual leave.
There is no more or less favourable than those provide for an Australian citizen or permanent residence performing equivalent work.
If the company is in good profit position, the company is prepared to offer all employees (Australian and overseas) with good salary and housing subsidies.
8       If the nominated position is not located in regional Australia and the applicant has paid the non-regional position application fee, information about;
a.The need to employ the nominee in the nominated position; AND
XEnclosed is the Need of Nominee Report which was prepared on 2 September 2021 for your reference. Pages 204 to 235.
b.       The applicant's business operating for :
at least 12 months - its recent training expenditure; OR
As you can see from "P" (page 137)- Organization Chart - Ningxia Deng is our company's education officer who is responsible for training our company's employee.
We are in agreement with Wise Employment, they sent disable workers to our company for training and they will provide wages subsidy.
YSchedule to Wage Subsidy Agreement for the employee "Yuzhen Zhang" Pages 236 to 242.
Wage Subsidy Agreement for the employee "Lai Chung Ma". Pages 243 to 247.
Receiving wages subsidy of $5,000 on 11 February 2021 (pages 248 to 251), $1,538.16 on 31 March 2021 (pages 252 to 253) and
$2,307.69 on 8 July 2021 (pages 254 to 256) from Wise employment. ii            less than 12 months - its plan for future training expenditure
The company will pay for training for all employee attend training class.
Company would prefer farm employees go to Orange TAFE for training as Orange TAFE teachers are local farmers and they are very experience in the local area farming. Most importantly, our company will have the opportunity to be introduced to Local farmers and the company can seek local farm workers from Orange TAFE to work at the company farm.
Rosita Luk and Martin Ma were trained by Orange TAFE in 2020, due to Covid, the course was discontinued. We were unable to attend the Tractor examination at the company farm due to Covid, it was cancelled.
At the moment, we need to organise the Etech sale, arrange funding for the Council requirement for the road work, set up the experiment room for nursey, set up big container of water tank rather than only relying on ground water. We need to develop the gardening skill from Flower Power and tree planting skill from Bunnings. We are in middle of discussion with Flower Power in joint venture for green house flower production, and also discussion with local Chinese Doctors for joint venture at health planting. We will not able to attend Orange TAFE until 1 April 2024 due to busy business schedule and commitment on business.   We leave the farm work for local sub contractor farmer to
organise. We need to obtain customers purchase order and arrange goods be delivered to customers. We need to place order on suppliers. Arrange with Sydney and Orange farmer to get their vegetables, fruit and eggs then distribute to customers.
•          Invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, or records of investment in certain industry training funds or recognised industry bodies.
Please see the above for details.
Government employment agency is currently sending disable and elderly workers to our company and asked our company to assist them to have employment and train them.
We have to assess each worker who was sent by employment agency and allocate them to different section for working and on job training.
Training fund is not an issue as government will subsidy all employees were sent to TAFE for training. If employees are receiving on job training, we even will receive training fee.
The training program is provided by TAFE if employees select to go to TAFE, if employee is receiving on job training, the store manager will show them how to use cash register, how to input coding and using scanner for pricing, how to display products in the shelving, how to serving customers and what to say when customers asks questions. Our staff needs to understand our products display position and pricing whenever customers ask will able to assist. Store manager has to follow up the delivery orders from customers and set time table for staff to work and delivering goods to customer from time to time.
In the farm, new farm workers need to be trained by company local sub contractor farmers to differentiate summer vegetables and winter vegetables. Stone trees selection are important as well. Each local farmer has only one skill, workers have to decide which area they are interested in farming before training can be located. Live stocks are different to gardening and vegetable planting. Training will depend on the interest of worker.
9        ff the nominated position is located in regional Australia, information about;
a.the need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; AND
Company believes local experience Australian citizen and permanent resident are able to file the position, position has been offered to those local sub contractor farmer, but they refused the offer and prefer being a sub contractors and would not like responsibility nor permanent job.
The unskilled workers would like to take up the position but they are not qualified.
That is the main reasons, we need to employ the nominee.
b.       whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that;
i.the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; AND
UEnclosed is the employment agreement. Mr Zhong will be at $124,800 per annum plus super and annual leave. Pages 197 to 201.
VThe project manager, Yee Choon Choong is at $4,800 per fortnight, annually is $124,800 per annum plus super and annual leave. Enclosed is the recent payslip of Mr Choong - Page 202.
WThe accountant, Mr Martin Ma, is at $7,000 per fortnight, annually is
$182,000 per annum plus super and annual leave. Enclosed is the recent payslip - Page 203.
There is no more or less favourable than those provide for an Australian citizen or permanent residence performing equivalent work. Our company is fair and reasonable and will treat all employees the same it does not matter they are local or overseas as long as they fit the position.
ii.        there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant's direct control; AND
XEnclosed is the Need of Nominee Report which was prepared on 2 September 2021 in which you will able to see there is a genuine need to employ the nominated persona for your reference. Pages 204 to 235.
iii.        the position cannot be filled by an Australian citizen or permanent resident living in the same area;
We believe that the position can be filled by experience skill Australian citizen or permanent resident living in the same area, but unfortunately, our company could not find that persona in local area.
That is the main reasons, we need to employ the nominee, if the local experience work willing to take up the offer is more preferable than nominate people from overseas.
•        Local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body's certificate issued to the applicant in respect of this position.
Please note that all the employment agency is well aware of our company's needs for skill workers and the local has offered sub-contractors assistance and they are currently working as sub-contractors.
Employment agency often contacted our company and sought for assistance for unskilled workers to be able to work for us. We need the skill experience workers to work for our company and organising the training and recruitment.
10      INFORMATION ABOUT WHETHER THE APPLICANT HAS BEEN SUBJECT TO MONITORING BY THE DEPARTMENT AND, IF RELEVANT, THE OUTCOME OF THE MONITORING AUDIT;
We are not aware of any audit, however, some background might relate to your query of the applicant has been subject to monitoring by the Department.
Background information
On 18 December 2017, the applicant was refused the visa 186 because of the following reasons:-
a)   Belinda Neal was engaged to act on behalf of our company for the applicant's visa 186 - Rosita Luk was in the hospital undergone a brain surgery operation in January 2017. She sent a SMS to Belinda Neal and told her that due to her
health problem, she was uncertain the management of farm project and sought Belinda Neal to find out the progress of the application of the nomination. The department considered Belinda Neal was rude and using abusive language to the officer when Belinda made the enquiry with the department. This had negative input in the application. We only aware of this because it was mentioned by the Tribunal member, Antoinette Younes" during
the hearing.
b)   It was a business plan organised by the then migration agent, Simon Chen, in the business plan it mentioned that the applicant was carried out research in Melbourne during the period in March and April 2015. In fact, the applicant was not in Australia at those period. The applicant was in Australia for his honey mood during the period from 18 May 2015 to 25 May 2015 for eight days, then the applicant and his wife went to Fiji and Bali for holiday and returned back to Australia on 15 June 2015 and left Australia on 22 June 2015
for 8 days. Total 16 days in Australia. The department and the Tribunal member base on the business plan and form the opinion that the applicant was working in Australia while on visitor visa regardless the period mentioned in the business plan was different period. We have explained to AAT but the explanation appeared that it was not accepted by AAT. AAT's decision is
based on negative or incorrect evidence.
c)   Before Member Antionette Younes handled our company's review on behalf of AAT, it was another member, Denise Connolly before her, she did not like the paper lodgement of PAYG and in her mind those PAYG was not reliable documents and also she did not believe the company had lodged the company tax return based only on the ATO portal print out. Member Denise Connolly demanded company's Notice of Assessment. Upon her request, the company had approached ATO to provide a letter stating that due to the company did not require to pay company tax, so no company notice of assessment would be issued and also provided the record of employee's PAYG. When our company received from ATO letter to clarify with Member Denise Connllly, we immediately forwarded to Member Denise Connolly. We were informed by Member Antoinette Younes that Member Denise Connolly was on leave and then the AAT matter was handed over to her.
d)   During the hearing, Member Antoinette Younes recommended our company to lodge visa 187 under Regional Sponsored Migration Scheme during the hearing. We believed that she had made her mind to refuse and kindly provided us an alternative solution. Her conduct in this AAT matter is fair and reasonable with all the negative and incorrect material in front of her.
e)   After the Tribunal affirmed the decision under review to refuse the nomination, the company proceeded with Visa 187 on 18 December 2017.    We followed Member Antionette Younes' advice to lodge Visa 187 and applied for Regional Sponsor in May and June 2022 with five application. We obtained Reginal Sponsored Migration Scheme - Regional Certifying Body approval five application in July 2019.
ZForm 1404- approved by Regional Sponsored Migration Scheme - Regional Certifying Body approval the nominee on 10 July 2019.
Pages 257 to 259.
f)    We proceed with five nomination application with the same material to Regional Sponsored Migration Scheme - Regional Certifying Body. This application before the AATwas lodged with department on 3 June 2019 and it was refused on 10 September 2019. The refusal was correct because we under assumption that once the Regional ·Sponsored Migration Scheme was approved, the nomination would be approved, we only provided all the materials which was submitted to Regional Sponsor to the department. In fact, it was certain criteria needs to be met by the department and due to lack of understanding they were different department, so refusal was on 10 September 2019. We lodged the application with AAT as we believe the company is qualified for nomination and tried to address all the issue with AAT.
We are believe the monitoring of the applicant for the above reasons. Other than that we would not know any monitoring. If any negative effect on the nominee it was caused by the company who made incorrect information at the company's Business Plan. Please note that we did not prepare those Business Plan which was organised by migration agent, not our company, we only paid for it.
11      INFORMATION ABOUT WHETHER THE APPLICANT HAS BEEN THE SUBJECT OF ANY INVESTIGATION ABOUT A POSSIBLE CONTRAVENTION OF THE LAW.
Please refer to "1O" of the above for answer. Due to incorrect information was at the Business Plan, the department and the AAT considered the nominee was not in Australia for honey mood under visitor visa but for work, so the nominee was breach the lawful condition of the visa. In fact, the nominee was for honey mood and he would not do anything to breach the visa condition as it is unnecessary, he could have applied for temporary working visa if it is required for him to work.
For the Tribunal's information, even you would approve this application, the visa applicant will not able to lodge an application because the RSMS-DE visa closed to new applications on 15 November 2019.
As we have mentioned to you in "10 (f)", our company lodged five visa 187 nominations. One of the application was lodged on 26 May 2019 and it was approved on 25 October 2019 and the approval letter stated that the visa applicant can lodge the visa within 6 months from the date of approval. The visa applicant lodge on 18 November 2019 online and the visa application for 187 was no longer exist online. We made an enquiry to the department
numerous times, only on 24 February 2020 at 12:10 pm advising us that "The RSMS-DE visa closed to new application on 15 November 2019" and the department apologise and willing to refund the application fee if we wish to apply for it. So far, we have not applied for the refund.
Enclosed are as follows for your reference:-
AAApplication lodged on 26 May 2019 for visa 187 nomination. Pages 260 to 263.
BBApproval on 25 October 2019. Pages 264 to 267.
CCNomination approval notice stating that visa applicant can lodge within 6 months from the date of approval. Pages 266.
DDEmail exchange between Rosita Luk and the department - in particular the email dated 14 February 2020 at 12:10 pm advising that "The RSMS-DE visa closed to new applications on 15 November 2019" and willing to refund the application fee. Pages 268 to 275.
Our of the five nominations for visa 187, one was approved and the other four was refused. Four application before the AAT.
Case Number: 1924591 - the visa applicant has left Australia, we have withdrawn the application with AAT.
Case Number:    1926161 - the visa applicant has granted visa 186. Subsequently, we withdrew the application.
Case Number: 1926895-this is the application we provide you the information in this matter. Due to the change of legislation, even Tribunal now approve it, it has no significant to our company. For your information, visa 186 has been lodged for the nominee and waiting for the department to made the decision.
Case Number: 1926893 -we will reply to AAT regardless the approval make no significant to our company. It is important to inform AAT that our company is genuine need of position and also lawfully running a business in Australia.
We hope the above reply your letter 20 September 2022. Thank you for your time.
…

The matter was constituted to a Tribunal Member on 1 March 2023. On 16 March 2023, the Tribunal wrote again to Ms Luk, via the agent, as follows:
…

1926895 - REFUSAL OF NOMINATION FOR SUBCLASS 187 VISA IN DIRECT ENTRY STREAM FOR NOMINEE XIAOMING ZHONG IN POSITION OF SALES AND MARKETING MANAGER (ANZSCO CODE 131112)
These matters are now under active consideration by a Tribunal Member, who notes that you stated as follows in your submission to the Tribunal dated 4 October 2022, made in relation to case 1926895:
…
Case Number: 1926895 - this is the application we provide you the information in this matter. Due to the change of legislation, even Tribunal now approve it, it has no significant to our company. For your information, visa 186 has been lodged for the nominee and waiting for the department to made the decision.
Case Number: 1926893 - we will reply to AAT regardless the approval make no significant to our company. It is important to inform AAT that our company is genuine need of position and also lawfully running a business in Australia.
You appear to be suggesting that there is no point to continuing the review application in relation to case 1926895 as the nominee in that case has made a new subclass 186 visa application (presumably associated with a new nomination). Therefore, please clarify whether you wish to proceed with this application, and if so, on what basis.
Alternatively, if you wish to withdraw this review application, please do so in writing as soon as possible using the form in this link: Withdrawal (aat.gov.au)
In relation to case 19269893, please clarify whether you still wish to proceed with this review application. If you do not, please withdraw it in writing using the link above to access a withdrawal form.
If you do wish to proceed with one or both review applications, the Presiding Member requests that you now provide updated information, as follows:
·Business Activity Statements (BAS) for period September 2022 to date;
·Financial statement and company tax return for 2021/2022;
·Current organisational chart;
·Current employment contracts for the nominees;
·Submissions as to what the Annual Market Salary Rate (AMSR) should be taken to be for each nominated occupation; and
·Submissions describing the current operations of the business.
Please provide the above information as soon as possible.
…
On the same date, the Tribunal was advised that Mr Levingston was no longer acting for the applicant. The Tribunal was requested to forward all correspondence to Ms Luk, the sole director of the applicant, on 18 May 2023.
On 1 June 2023, the Tribunal wrote to Ms Luk to invite her, on behalf of the applicant, to attend a hearing to be conducted by videoconference on 22 June 2023, to be held as a combined hearing with another nomination review application before the Tribunal for the applicant (being 1926895 for the nominated position of Sales and Marketing Manager). She was requested to provide any further material in support of the cases by 15 June 2023.
On 6 June 2023, the Tribunal sent a follow up email to Ms Luk to request her to advise when she (or if) she intended to respond to the Tribunal’s earlier letter requesting clarification of whether the applicant intended to proceed with both its review applications, and if so, for additional information.
On 10 June 2023, the Tribunal received an email from Mr Abhinav Goyal attaching an authority from Ms Luk appointing him as representative and authorised recipient for correspondence for the applicant, a request for access to the documents held by the Tribunal pursuant to s.362A of the Act, and a request to postpone the hearing in order to receive the material held by the Tribunal and provide submissions.
The Tribunal released material to the applicant via its agent on 15 June 2023. On 16 June 2023, it agreed to postpone the hearing, and on 30 June 2023, it advised Ms Luk via the agent that the hearing would now take place on 20 July 2023 by videoconference. It requested that any additional submissions and/or supporting documents be provided by 13 July 2023.
On 14 July 2023, the Tribunal received a submission from the agent, together with various supporting documents.
The contents of the agent’s submissions were as follows:
…
This submission is in response to your letter dated 1 June 20231 regarding invitation to attend a hearing in relation to the application for review made by Universal Trade Pty Ltd in respect of a decision to refuse a business sponsorship application and provide clarification regarding the information specifically requested in your letter dated 16 May 20232 in relation to AAT case 1926893 – refusal of nomination for sc187 in direct entry stream for Wenyu Wu in position of importer or exporter and AAT case 1926895 - refusal of nomination for sc187 in direct entry stream for nominee Xiaoming Zhong in the position of sales and marketing manager.
The applicant, Universal trade Pty Ltd confirms that it wishes to proceed with the review application in relation to both the cases, 1926895 and 1926893. As far as case 1926895 is concerned, although a subclass 186 visa was lodged but it was not approved, therefore, Universal Trade Pty Ltd affirms to proceed for subclass 187 in Direct Entry stream for nominee Xiaoming Zhong in position of sales and marketing manager.
Case 1926893 relates to the nomination subclass 187 visa for nominee Wenyu Wu in the position of importer or exporter, which is crucial position for the business future operations as the business is focussing towards exporting the bulk produce from the farm as well as livestock overseas.
Business Background
1.    Universal Trade Pty Ltd was incorporated in 2003 as a grocery store (Masinlu Grocery Store) at 11 Kensington St, Kogarah NSW 2217, under the directorship of Rosita Luk. Later, in 2014 Rosita Luk purchased a farm located at 621 Canobolas Road, Canobolas NSW 2800 belonging to Ian McDonald with over three hundred cherry trees, some apple trees, some olive trees, some berry trees. Rosita incorporated a company, Orange Towav Valley Pty Ltd, to purchase the farm and settlement took place on 4 July 2014 for $900,000 and four water licence for $400,000 without mortgage.
2.    Rosita thought of the expansion of her business and initiated a plan to set up a greenhouse to grow Asian fruits and vegetables all year long, any time of the year which will result in bulk produce in order to meet the demands of the local customers as well as engage in exporting the produce overseas.
3.    Also, as there was lack of tourist accommodation in the area, although it was in high demand, the directors proposed Eco Tourist Cabins to be constructed on the other side of the farmland, with bed and breakfast facility for the tourists to enjoy and experience farm life. The directors are affirmative of the progress of this business as they have vast connections with travel agencies of the area. As Rosita, the director of Universal Trade Pty Ltd is also a solicitor she has multiple clients which are travel agencies including Global Group, Study Travel Group, and Southern Hemisphere Travel Services Pty Ltd, which would promote the overseas visitor form China, Hong Kong, New Zealand, USA and UK to stay at the farm.
4.    To implement the plan of green house, after being greatly influenced by the greenhouse productivity as a result of her meetings and conferences with David Gill who had vast knowledge and experience in green house production, Rosita Luk purchased 2 acre of greenhouse steel materials imported from France from Harvey Norman, who was a promoter of greenhouse production. Therefore, Rosita Luk in the year 2015 planned a green house and the application for the approval of green house was lodged on 19 May 2016 with Cabonne Council by Geolyse which was approved on 31 October 2016, however, with certain conditions as they believed that the size of greenhouse production would generate income at least of $1 to 2 million per month which resulted in significant delay in setting up the green house at the farm at Canobolas.
5.    One of the conditions that led to the delay was to have Access Construction Certificate which costed $288,502.50. The Notice of Determination of an Access Construction Certificate was issued on 17 August 2021. After the construction certificate was approved by Council, then Engineering design services for the Development of Greenhouses and Associated Packing shed at 621 Canobolas Road, Canobolas costed another $203,018.75. The amount of $203,018.75 was paid in three instalments, the first $100,000 was paid on 16 August 2021, the second payment of $100,000 was paid on 17 August 2021 and balance of $3,018.75 was paid on 18 August 2021.
6.    Another condition imposed by Council was regarding infrastructure including road access, new power pole, transformer, etc (costing $2,340,140).
7.    The compliance of all these conditions and also the contingent conditions involved huge investment on the part of Universal trade Pty Ltd as evident from the following documents:
·Fee quotation by Ironbark Ag Pty Ltd for construction certificate 3.
·Earthwork quotation of $2,340,1404.
·Notice of Determination of an access construction certificate dated 17 August 20215 (approval of Access Construction Certificate).
·Engineering Services fee quotation by Ironbark for the development of greenhouses and associated packaging sheds at 621 Canobolas Road, Canobolas (Fees proposed = $203,018.75)6.
·Confirmation of payment of $203,018.757.
8.    Moreover, due to the outbreak of COVID-19 pandemic, the process of setting up of green house was halted due to lockdowns and other COVID-19 restrictions.
9.    During the period of 2016 to 2021, the farm was growing all the Asian Vegetables, such as Bok Choy, Chinese broccoli / Gai Lan, Sweet Potato Leaves / Greens, Water Spinach, Yu Choy / Choy Sum, shallots, Peas Shoots / Snow Pea Shoots, Han Choy / Red Amaranth. The farm also has chickens producing plenty of eggs.
10. The farm, during this period supplied its vegetables and eggs produce to most of Asian take away stores and also Universal Trade Pty Ltd’s Kogarah grocery store.
11. During the Covid-19 period in 2020, the grocery store was not actively operating due to Covid- 19 restrictions and imposition of regular and long intervals lockdown. As a result of that, the grocery store’s perishable stock which included fresh vegetables, fruits as well as items of daily grocery needs, needed to be looked after to minimise the wastage. Therefore, the company opened a takeaway and dine in Restaurant (Kogarah Golden Chopstick) nearby the grocery store to utilise the perishable products as well as the products nearby expiry to minimize the wastage resulting due to lockdowns and closure of business.
12. In 2021, the directors had to carry out the earthwork for their greenhouse project and in order to arrange for the capital required for the earthwork, the directors sold their property at 11 Kensington Street, Kogarah in July 2022. However, Universal Trade Pty Ltd took on lease the same property to continue its business operation from the same location as evident from the lease agreement8. The lease is bound to end by 31st March 2024 after which the business will relocate itself from 2 and 13, 11 Kensington Street, Kogarah NSW 2217 to 8 to 24 Princes Highway, Kogarah (property owned by the Director).
13. In July 2022, Kogarah Golden Chopstick closed due to the chef’s position becoming vacant and inability to find a new chef.
14. In addition, due to shortage of staff and skilled workers, the business has to close its grocery store, the Lucky Store (the trading name of Masinlu Grocery Store was changed to Lucky Store on 15 May 2020) at Kogarah for public (although it still is catering to the needs of other restaurants and take away retail shops).
Current Business Operation and Future Plans
15. Currently, Universal Trade Pty Ltd has been supplying fresh Asian vegetables and eggs produced on its farm to various restaurants and retail shops. Not only it provides its own farm produce to its customers but also it purchases other fruits and vegetables from other farmers to cater to the diverse needs of its customers.
16. As evident from the contracts9 with clients, its multiple customers include Little Hong Kong Merryland, Liverpool and Castle Hill, Jim Malay at Sydney and Newcastle. Kowloon Café at Chinatown, Kowloon Café at Burwood, Kowloon Café at Eastwood. Canton at Chinatown and Canton at Eastwood, Macau Noodle Kitchen at Burwood, Sunline Glass Pty Ltd at Revesby and Sunbright Aluminium at Punchbowl, Specialized Electrotech Training Pty Ltd at Walgett.
17. During the Covid-19 period, Universal Trade Pty Ltd purchased full container of toilet paper, tissues, paper towel, flour, rice, cooking oil and other grocery items from local suppliers who were closing their business at lower price. Kogarah Shop is currently being used as a storage facility for keeping the above-mentioned stock in bulk and not a grocery shop open for public. At present, it is also supplying that stock to other businesses as a wholesaler.
18. Universal Trade Pty Ltd has also been operating as a central kitchen and supplying precooked foods to multiple restaurants and take away food courts.
19. Universal Trade Pty Ltd has also leased its property to Kowloon café and has a rental income.
Future plan of Universal Trade Pty Ltd and overview of organisational structure
20. Universal trade Pty Ltd is planning to plant Cedar trees at its farm premises. Cedar trees are expensive due to the limited supply of cedar trees and the high demand for the lumber. Universal trade Pty Ltd will be assigning the job of organising and managing the plantation of cedar trees to its business partner Mr King Fai Chu.
21. In addition, Universal trade Pty Ltd will also indulge in the business of beekeeping and honey production as one of its business partners, Ms Silian Cai, has a vast overseas experience in beekeeping and honey production and now she is already a permanent resident of Australia. So, with her experience, skills and knowledge in the field, she will be a suitable person to look after this side of the business.
22. Furthermore, Universal Trade Pty Ltd plans to provide bed & breakfast facility to the visitors visiting farm. The company has selected Louis Goulimis from Solid Void to organise the Home Stay & Bed and Breakfast and will be paid by hourly rate of $187.50 plus GST as accepted by Louis Goulimis which is evident from the emails between Rosita and Louis Goulimis10. He will be entrusted with all the related work from connecting with tourist agencies to recruitment of staff.
23. Also, Louis Goulimis from Solid Void and Tim Carroll from Ironbark Ag Pty Ltd will be responsible to finalise the installation of Green House Project. David Grill, who is Green House, specialist will be responsible to train the local people to look after the Green House.
24. Moreover, in order to ensure smooth operation of the business under proper supervision of the Director, Rosita’s family will move permanently to Canobolas.
25. Glass green house will be built in front of home stay and bed & breakfast to provide opportunity to the students of Orange TAFE to undergo the apprenticeship at the farm. Orange TAFE will be in charge of organising the apprenticeship under the supervision of Tina Deng, the Education Officer, Orange TAFE.
26. Universal Trade Pty Ltd is also focussing on generating employment for the disabled persons in the area, by employing them for the bed and breakfast, as most of the homestay clients are visitors who are not in a rush for breakfast and other services and the disabled employees can work without any rush or burden. The disabled employees at Homestay will be working under the supervision of Ms Christine Bredan.
Current Organisational Chart

27. The documents outlined below have also been attached for your reference:
·Business activity statements for period September 2022 till date11 lodged with the Australian Tax Office
·Financial statement of FY2022 & 2023 and company tax return for 202312;
·Current employment contract for the nominee, Wenyu Wu13
·Current employment contract for the nominee, Xiaoming Zhong14
28. A record of the livestock issued by Local Land Services15; NSW government has been attached for your reference.
29. The financial objective is to grow the business into one of the main provider and exporter of fresh vegetables, fruits and eggs/livestock in the local area as well as overseas. The company will focus to grow the business by gaining market share from direct and indirect competitors.
30. The growth main factor will come from increasing the number of customers of all types as well as developing customer loyalty to ensure a stable customer base. Reputation is key to ensure continuous growth.
31. Universal Trade Pty Ltd also survived during COVID and kept business going amid closures, lockdowns and ever-changing regulations around Covid-19 which has been a titanic struggle. Many have closed, and many others are just trying to hang on, often by rethinking everything they do. Universal Trade Pty Ltd survived the financial hits, the emotional toll on everybody involved to stay in the business during this crisis.
32. It is submitted that Universal trade Pty Ltd has a good financial viability. Moreover, each and every asset owned by the Director, Rosita Luk has no mortgage, and also the Director has no outstanding tax debt to ATO as evident from the following:
·2023 company tax return 16
·Income Tax Transaction detail showing no outstanding amount to ATO17
·Activity Statement Transaction detail showing no outstanding amount to ATO18
33. Now, as the company has complied with all the conditions related to the greenhouse horticulture as well as setting up eco tourist cabins including bed and breakfast facility, it is focusing at changing the organisational structure which will contribute to the growth of business. It is important to notice that if the business is going well, as it is forecasted, hiring new staff will become necessary. The company will be profitable if they can find a suitable person to fill in the position which is needed for achieving the desired growth of the business. As the business grows, adding personnel to the staff should be considered.
Prospects of Greenhouse horticulture and Projected Growth
34. Greenhouse horticulture market is set to transform traditional agriculture. With a focus on sustainability and innovation like AI, climate control, and precision irrigation, greenhouse horticulture is pushing the boundaries of what's possible in agriculture.
35. As the global population is projected to reach 9.7 billion by 2050, the greenhouse horticulture market is poised for significant growth due to the rising demand for fresh produce. According to a study, the global supply of fruits and vegetables falls 22% short of the population's needs, with lower income countries experiencing a 95% shortfall. Without increased production, a fruit and vegetable supply gap of 34% and 43% is projected for 2025 and 2050 respectively.
36. To bridge this widening gap, governments worldwide are supporting greenhouse horticulture farming, which offers year-round production and yields up to 10 times higher than traditional field agriculture.
37. Greenhouse horticulture has emerged as an increasingly popular method of agriculture in recent years, especially as climate change continues to impact traditional farming practices. According to data from the United Nations Food and Agriculture Organization (FAO), the global greenhouse area was estimated at 9.5 million hectares as of 2021, experiencing growth at an average annual rate of around 5.6% between 2000 and 2021. This figure reflects a growing trend towards greenhouse farming as a means of ensuring food security and mitigating the effects of climate change.
38. According to IBIS World survey, revenue form greenhouse horticulture has been growing at an annualised 3.1% over the five years through 2022-23 – including an estimated 5.0% jump in 2022-23 – and is expected to total $960.1 million, with profit margins set to rise to 13.4%. Supermarkets are becoming increasingly important downstream buyers. Supermarket chains are a key sales channel for vegetables, which tends to benefit players that operate with high volumes and consistent supply streams.
Benefits of Green House Horticulture for Universal Trade Pty Ltd.
39. The green house horticulture will lead to increase crop yields as it maintains the climate which is ideal for the crop production.
40. The business will be able to produce more food as the green house extends the growing season and provide year-round growth conditions for vegetables and fruits, which is important in Australia, where weather conditions vary significantly from season to season.
41. As the export market for green house vegetables and fruits is flourishing, the business will be able to produce more in order to cater to the needs of the local customers as well as the overseas customers.
42. Universal Trade Pty Ltd will focus on product innovation and strategic partnerships with the help of its exporter to gain a competitive edge and to expand its market reach. In line with this, it will constantly update itself with new technologies to improve the efficiency and sustainability of greenhouse production.
Determination of Annual Market Salary Rate for the nominated position of Export Manager (Exporter or Importer)
43. The nominee Wenyu Wu has vast experience in exports as she has worked as an exporter for her mother’s company Wuma Holdings Pty Ltd and Australia One Nine Pty Ltd, exporting live cows and red wine from Australia to overseas.
44. She was the Export Manager for both of her family business from 2013 to 2019.
45. Rosita acted as a solicitor for Wenyu’s mother’s company, and that is how Rosita came in contact with Wenyu Wu.
46. Rosita observed her excellent skills in dealing with customs related issues when Wenyu Wu assisted one of Rosita’s clients in obtaining the licence to export products from Australia to Hong Kong and China.
47. As the Universal Trade Pty Ltd is engaging in greenhouse horticulture and the export market for green house vegetables and fruits is flourishing, the business will be able to produce more as the greenhouse extends the growing season and provide year-round growth conditions for vegetables and fruits, in order to cater to the needs of the local customers as well as the overseas customers.
48. Universal Trade Pty Ltd in order to gain a competitive edge and to expand its market reach needs the services of an experienced exporter. As the company has no prior experience ln exports, it needs Wenyu Wu skills to achieve its business goals to expand itself overseas as she has the experience in exporting and knowledge about the overseas market as well as the international trade compliance requirements. She also has the networking skills including the skills to interacting with multiple stakeholders such as customers, vendors such as freight forwarders, transport service providers, and representatives of government agencies such as customs officials.
49. The nominee Wenyu Wu is offered an annual salary of $124,800 for 37.5 hours of work per week in a 52-week working year. The salary is based on the experience, skills and accomplishments of the employee. The nominee is offered this salary based on the market wage rate and the employer will continue to pay the market wage rate to the nominee.
50. The market wage can be determined by exploring a wide range of resources that point to the direction of the way majority of the companies are paying for Export Manager in Australia. This kind of information is drawn from a survey of advertised position, ABS salary database, Labour Market Insights, Payscale wage guides and the relevant award.
51. The nominee is offered the salary at the market rate and this pay will continue as the employer is committed to pay the nominee the market salary rate.
Research
Job sites
52. The advertisements below show the range of salary that is provided to Export Manager (Exporter/Importer) in the market. The job position advertised in these advertisements is of Export Manager (Exporter/Importer). As stated by the job description of these advertisements, the tasks and duties to be performed by the Export Manager (Exporter/Importer) as per these advertisements are similar to the tasks and duties of nominated position at Universal Trade Pty Ltd and mostly include planning, organizing, and implementing sales strategies for international market and planning and coordinating shipments and supervising delivery, managing customers and personnel and ensuring that shipments comply with domestic laws as well as international export, trade and financial laws.

…
Payscale.com.au
53. Payscale.com.au estimates that the average salary received by an Export Manager is roughly $101,470 However, salary received by Export Manager fall anywhere between $76,000 to $174,000 and this salary variation depends on the level of experience, skills and specific establishment that they work in. The salary range taken into consideration is between 0 to 20 years with a range of skills possessed by the professionals. As the nominee is offered salary of $124,800 this would be in consistency with the industry salary range and also equivalent to the nominee’s skill set and experience of many years.

…
Salary.com
54. The average Import/Export Manager salary in Sydney, NSW is $171,589, but the range typically falls between $138,799 and $204,363. Salary ranges can vary widely depending on many important factors, including education, certifications, additional skills, the number of years the candidate has spent in the profession. As the salary offered to the nominee is $124,800, it is appropriate considering nominee’s skill level, experience and qualifications.

Labour Market Insights
55. The data on Labour Market Insights gives an impression about the kind of salary received by an Export manager/Exporter. Exporters plan, organise, direct, control and coordinate the operations of exports of the business. The following data shows the median weekly earnings received by such professionals in the industry compared to all occupations for total employment and for full-time workers. The data on Labour market Insights indicates that the weekly earnings before tax for a full-time Exporter is around $2,140 per week (which comes to $111,280 annually) compared to $1,593 per week received by all other occupations.
…
56. At the moment, there are no Australian Citizens/Permanent Residents working in a similar role. The business has undertaken market research and the offered salary equivalent to what it would be offered to an Australian Citizen with the same level of skills and experience as the Nominee. In addition, the salary offered also meets the Temporary Skilled Migration Income Threshold (TSMIT).
Salary Summary
57. According to the above data, salary summary for the Export Manager occupation is outlined in the table below.

Source

Minimum

Maximum

Average

Careerone

$90,000.00

$95,000.00

$92,500.00

Workforce Australia

$90,000.00

$100,000.00

$95,000.00

Salary.com

-

-

$171,589.00

Average

$90,000.00

$97,500.00

$119,696.33

58. Based on the above research the average salary for the Export Manager position in Australia is $119,696.33. This is supported by active advertisements on leading Australian employment portals and government websites. As the Nominee has vast experience of working as an exporter, exporting live cows and red wine from Australia to overseas as well as due to her vast knowledge about the overseas market as well as the international trade compliance requirements, she has been offered a salary of $124,800, which is just and fair considering her many years of experience and knowledge in the field.
59. Conclusively, when all of the information included in this research are taken into consideration, the nominee’s salary of $124,800 is in line with the national average and the nominee will be paid the right salary subject to experience, which is at the Market rate. Hence, the salary offered to the nominee for the position is validated.
Determination of Annual Market Salary Rate for the nominated position of Sales and Marketing Manager
60. The nominee, Xiaoming Zhong is offered an annual salary of $177,500 for 38 hours of work per week in a 52-week working year. The salary is based on the experience, skills and accomplishments of the employee. The nominee is offered this salary based on the market wage rate and the employer will continue to pay the market wage rate to the nominee.
61. The market wage can be determined by exploring a wide range of resources that point to the direction of the way majority of the companies are paying for Sales and Marketing Manager in Australia. This kind of information is drawn from a survey of advertised position, ABS salary database, Labour Market Insights, Salary.com wage guides and the relevant award pay scale.
62. The nominee is offered the salary at the market rate and this pay will continue as the employer is committed to pay the nominee the market salary rate.
Market Research
Job sites
63. The advertisements below show the range of salary that is provided to Sales & Marketing Manager in the market. The job position advertised in these advertisements is of sales and marketing manager. As stated by the job description of these advertisements, the tasks and duties to be performed by the sales and marketing manager as per these advertisements are similar to the tasks and duties of nominated position at Universal trade Pty Ltd and mostly include planning, organising, directing, controlling and coordinating the sales and marketing activities within an organisation.
…
Salary.com
64. The average Marketing Manager salary in Sydney, NSW is A$147,679, but the range typically falls between A$111,276 and A$175,782. Salary ranges can vary widely depending on many important factors, including education, certifications, additional skills, the number of years the candidate has spent in the profession. As the salary offered to the nominee is $177,500, it is appropriate considering nominee’s skill level, experience and qualifications.

65. At the moment, there are no Australian Citizens/Permanent Residents working in a similar role. The business has undertaken market research and the offered salary equivalent to what it would be offered to an Australian Citizen with the same level of skills and experience as the Nominee. In addition, the salary offered also meets the Temporary Skilled Migration Income Threshold (TSMIT).
Salary summary
66. According to the above data, salary summary for the Sales & Marketing Manager occupation is outlined in the table below.
…
67. Based on the above research the average salary for the Sales & Marketing Manager position in Australia is $177,282.25. This is supported by active advertisements on leading Australian employment portals and government websites. As the salary offered to the Nominee is $177,500 per year. it is almost equivalent to the average earnings $177,282.25 for the Sales & Marketing Manager position. Also, the salary of $177,500 proposed to the nominee is in accordance with the annual salary range of a Sales & Marketing Manager.
68. Conclusively, when all of the information included in this research are taken into consideration, the nominee’s salary of $177,500 is in line with the national average and the nominee will be paid the right salary subject to his experience, which is at the Market rate. Hence, the salary offered to the nominee for the position is validated.
Conclusion
69. Hence, it can be concluded that Universal Trade Pty Ltd wishes to proceed with the review application in relation to both the cases, 1926895 and 1926893 and also that it has clarified the points raised by AAT regarding AAT case 1926893 – refusal of nomination for sc187 in direct entry stream for Wenyu Wu in position of importer or exporter and AAT case 1926895 - refusal of nomination for sc187 in direct entry stream for nominee Xiaoming Zhong in the position of sales and marketing manager.
…
17.     On behalf of the applicant, its director Ms Rosita Luk, appeared before the Tribunal on 20 July 2023 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who also attended by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
18.     The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, given that Ms Luk and the agent were based in New South Wales, while the Presiding Member was based in the Victorian registry of the Tribunal. 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 videoconference. The Tribunal is satisfied that Ms Luk, on behalf of the applicant, was given a fair opportunity to give evidence and present arguments.
19.     Ms Luk confirmed that she is currently the sole director and shareholder of the applicant company. She assumed these roles in April 2020, having previously been the lawyer and bookkeeper for the business. She confirmed that her husband, Martin Ma, an accountant, was previously a director, as was her daughter, Philippa Victoria Chung Wai Ma (also an accountant), Mr King Fai Chu (Ms Luk’s business partner) and Mr Xiaoming Zhong (the nominee for the position of Sales and Marketing Manager). When asked why these directors ceased their roles and she became the sole director and shareholder, Ms Luk said that she was considered the most suitable person to do so, particularly given her husband and daughter were not interested in running the business and Mr Zhong and Mr Chu were based overseas. She clarified that Mr Chu was based in Australia originally and was actively involved in running the farm, but returned to China and was unable to return during the period of the global COVID19 pandemic. Although he had returned now, the business needed new skills due to the expansion of its operations.
20.     Ms Luk gave a detailed history of the applicant’s business, noting that it started with the acquisition with the grocery store in Kogarah, and with plans to establish an Asian supermarket there which ended up not occurring. Instead, the applicant also opened a restaurant. The grocery store supplied goods to the restaurant, and to other restaurants. Ms Luk said that most grocery products were imported from Asia, as this was cheaper, and that it was then decided that the company should acquire its own farm to supply fresh produce. The business bought a farm, with fruit orchards and 4 water licences, in Canobolas in 2014. In response to the Tribunal’s query, Ms Luk clarified that the farm land is owned by a related company, Orange Towac Valley Pty Ltd, but its operations are run by the applicant company. The farm grew vegetables and fruit aimed at the Asian market both within and outside Australia. Ms Luk said that they had a custom agent in China to handle the export of the farm’s products to that country.
21.     In relation to the Tribunal’s query about the current status of the greenhouse development, Ms Luk said that the plans to construct the greenhouse on the farm at Canobolas were first formed approximately 15 years ago, when the company purchased the materials to do so, having conducted research and determined that this would be a good business investment. Ms Luk described a protracted process of seeking and obtaining permission from the local council to commence construction of the greenhouse, noting that she believed that it was imminent, subject to the applicant and the council negotiating a favourable compromise to the council’s demand for an expensive access road to be constructed as part of the condition to approve construction. Ms Luk also noted that many local landowners initially opposed the construction of the greenhouse but a number of them had now come round to the idea and some were supportive. Ms Luk said that she was committed to the greenhouse as it would significantly expand the applicant’s production capacity for fresh produce, and the produce would be of higher quality. She referred to the fact that due to mining in the Orange – Newcastle area of New South Wales, both farming land and water supplies were contaminated, whereas produce grown in a greenhouse was protected from contamination, and also from climate issues. She estimated that the applicant had spent about $2 million on the greenhouse development to date, and told the Tribunal that the company would not have undertaken this level of investment unless it was clear that it would generate significant income for the applicant. She estimated that once it was operational, it had the capacity to generate income of $2 million per year.
22.     In response to the Tribunal’s query, Ms Luk said that the building plans for the applicant included a new residential home for her family (as they planned to relocate to the farm in March 2024), accommodation for farm employees, and accommodation for tourists. In response to the Tribunal expressing the view that the income from tourism seemed to be some time off, given the accommodation had not yet been built, Ms Luk told the Tribunal that the development of the accommodation project had not yet been approved by the council but approval would be applied for in about 2 weeks, and the council was encouraging about the project. Ms Luk said that she thought that upon approval, construction would likely commence around November 2023 and hopefully be finished by January 2024. In response to the Tribunal expressing doubt about this timeline, in light of the protracted approval process for the greenhouse project, Ms Luk said that she was confident that it could be met, and that 1 of the nominees, Mr Zhong, was in talks with various government tourist related agencies in China about incentives for Chinese tourists to visit.
23.     Ms Luk told the Tribunal that the applicant company had no debts to the ATO, and all of its assets were unencumbered. In response to the Tribunal noting that it had posted losses of close to $500,000 for the 2020/2021 and 2021/2022 financial years, Ms Luk said that these were carried over losses (as a result of upgrading major farming equipment and depreciation) and did not indicate that the applicant was running at an operating loss. In response to the Tribunal noting that the applicant’s most recent BAS indicated that its sales for 2022/2023 may not exceed $500,000 (based on the year to date sales to end of March 2023 of approximately $220,000), Ms Luk said that the ATO now required the applicant to lodge monthly BAS due to its high income. She said that she was confident that the applicant had the financial capacity to pay the 2 nominees their proposed combined annual salaries of approximately $300,000.
24.     In response to the Tribunal querying why Ms Luk and the applicant were pursuing these review applications, given they acknowledged that subclass 187 visas could no longer be granted to the nominees (both of whom were in China) as the subclass 187 visa program closed in late 2019, Ms Luk said that she felt very strongly that unfair findings had been made in relation to Mr Zhong in the previous Tribunal (differently constituted) in December 2017 about his having breached condition 8101 of his previous visitor visas. Ms Luk said that she disagreed vehemently with these findings and was concerned that they may affect Mr Zhong’s future visa applications. She added that at the time (2017), she engaged a migration agent (not the applicant’s current agent), who prepared a business plan on behalf of Mr Zhong which incorrectly suggested that he was undertaking work in Australia, when he had only ever worked for the company in China. She added that she partly blamed herself, as she had serious health issues at the time and did not read the business plan closely. She stated that if she had, she would have corrected this.
25.     The Tribunal noted that even if it approved these nominations, this would not necessarily clear Mr Zhong’s record, nor would it result in the grant of visas to the nominees. The applicant’s agent noted that the applicant hoped to lodge new nominations in relation to the nominees, for the successor visas to the subclass 187 visa program, and favourable findings by the Tribunal in relation to these applications might prove useful.
26.     In response to the Tribunal’s query, Ms Luk said that the nominee for the position of Sales and Marketing Manager, Mr Zhong, was an associate of Mr King Fai Chu. She confirmed that Mr Zhong had been living and working in China for some years, as an associate of Mr Chu’s Chinese company, although she stated that she was unsure whether he was formally employed by that company. She said that he continued to undertake work on behalf of the applicant from China, but was not paid by the Australian company, as it was considered that this caused misunderstandings with the Department previously. Ms Luk said that Mr Zhong had marketing experience, including for the applicant in China, and had undertaken qualifications in agriculture (to assist with the greenhouse project of the applicant).
27.     In response to the Tribunal’s observations that both nominees appeared to be able to carry out beneficial work in their respective capacities for the applicant while based in China, thus raising the question of whether either position was genuinely needed in the Australian business, Ms Luk said that were several reasons why it would be preferable to have the nominees relocate to work for the applicant in Australia. Firstly, it would be preferable for both nominees to be in Australia to check various aspects of the business in person, and deal with potential suppliers and clients in person. Ms Luk noted that in particular, it was important for Ms Wu (nominated in the occupation of Exporter) to be able to check the quality of the products to be exported to China. Ms Luk said that the second reason that it would be beneficial to the applicant is that she anticipated stepping back from her responsibilities in 2024 as she had been advised that she would need to have a serious operation (following on from an operation to remove a brain tumour in 2017) and she anticipated that this would need to take place some time after she and her family relocated to Canobolas in or after March 2024. Ms Luk told the Tribunal that in addition, she was extremely busy dealing with the ATO over various cases.
28.     In response to the Tribunal querying why the applicant had not outsourced these roles to an Australian person or organisation, given it had outsourced the management of the farm, the development of the greenhouse and the accommodation to external people, Ms Luk said that she preferred to hire locals where possible, but she had not been able to find local people with the expertise, work ethic and knowledge of the applicant that the nominees had.
29.     In response to the Tribunal’s query about what sources of income the applicant currently had (as opposed to its predicted future sources of income), Ms Luk confirmed that the applicant continues to supply fresh produce, grocery and cleaning products on a wholesale basis to restaurants and other businesses in Australia, and it received rental income from having leased its restaurant premises to another business after closing its own restaurant. Ms Luk said that the applicant also undertook share farming – essentially, arrangements whereby the applicant provided land, and other farmers grew produce or ran cattle on it, and they shared the profits of exporting the goods overseas or locally – which generated income, including some commission income.
30.     In relation to future income, Ms Luk told the Tribunal that the applicant would increase its income from fresh produce once the greenhouse was operational, and would receive income from its tourist accommodation. She added that the applicant would also operate a beekeeping operation, which was currently run by a business associate on another property. She said that the applicant had applied for permission for this to be relocated to the applicant’s property and expected that this would be approved. The honey produced would mainly be exported. In relation to the cedar tree plantation mentioned in the most recent written submissions, Ms Luk said that cedar trees had been planted, though this was a very long term project, and intended for heat mitigation on the property and for health related products in due course.
31.     Ms Luk told the Tribunal that being able to have the nominees work for the applicant in Australia would save money on various subcontractors, such as Solid Void (currently responsible for developing the accommodation project and various other activities that Ms Luk said Mr Zhong would be able to take over).
32.     At the conclusion of the hearing, the Tribunal agreed to defer its decision until 3 August 2023 to enable Ms Luk and the agent to provide additional supporting material. Several extensions of time were granted, and on 13 September 2023, the Tribunal received further submissions from the agent, together with supporting documents.
33.     The agent’s submissions were as follows:
…
We thank you for your cooperation and patience during the AAT hearing and also for allowing us another opportunity to address the points raised by you. This submission is in relation to the queries posed by you during the AAT hearing regarding application for review made by Universal Trade Pty Ltd in respect of a decision to refuse a business sponsorship application and provide clarification regarding AAT case 1926893 – refusal of nomination for sc187 in direct entry stream for Wenyu Wu in position of importer or exporter and AAT case 1926895 - refusal of nomination for sc187 in direct entry stream for nominee Xiaoming Zhong in the position of sales and marketing manager.
Queries Raised by the Tribunal Member and Their Addressal
Health issues of Ms. Rosita Luk and need of suitable employees to manage daily operations
1. It must be noted that Ms. Rosita Luk has brain tumour and has already once undergone a brain surgery in 2017 as evident from the letter of Dr George Tang, Healthpac Medical Centre, dated 24 July 2023 [Attachment 1]. Moreover, as evident from the Medical Certificate by A/Prof Ali Ghahreman, Rosita recently had a medical consultation on 11th September 2023 with Prof Ali Ghahreman, Neurosurgeon & Spine Surgeon, St George Private Hospital Specialist Centre, who has certified that Rosita will likely be required to undergo cranial surgery within next 6 months [attachment 2]. The decision and timing of surgery will be confirmed on the basis of MRI to be conducted on 6th November 2023 as per Dr. Ghahreman’s advise and the surgery will most likely be scheduled at the end of 2023.

2. Due to her medical condition, it is much harder for her to work in the same way and devote the same time as before because of side-effects caused by the tumour and its treatment. She doesn’t want to feel burdened and overwhelmed with high workload, which might aggravate her health. So, in order to reduce her hours and duties of work she wants to employ qualified and suitable Exporter as well as a Sales and Marketing Manager to reduce her workload and share her responsibilities. Both, Exporter and Sales & Marketing Manager will be performing their respective roles which are of core importance for the development and progression of Rosita’s business without burdening Rosita and thereby reducing her work stress and improving her overall psychological and physical well-being.
3. Both the nominees for the positions have vast experience in their respective roles, therefore, Rosita can rely on both of them to carry on the business operations efficiently.
4. The nominee for the position of Sales and Marketing Manager is Xiaoming Zhong. Mr. Zhong has completed a Farming Course - Training Certification of Network and Information Technology Management Centre (as evident from his resume and farming course certificate) [attachment 3] to gain deep understanding of farming sector. Through this course he has gained expertise in conducting market research and associated studies about market projections, trends, and conditions relative to prices and other market factors in order to determine market potentials and improve marketing prospects for agricultural commodities (including grain crops, livestock, fruits, vegetables, etc).
5. Through this course, Mr. Zhong, in addition to his general sale and marketing expertise has also enhanced his skills in farm management, livestock production and sales, livestock reporting, grain elevator sales, agricultural commodity brokerage, promotions and marketing work associated with agricultural commodities and products. He has upskilled himself in performing the following tasks:
• Developing, monitoring, managing and reviewing farm business operations and performance in line with relevant legislation and codes of practice
• Implementing industry insights and strategies for growing existing business, including new acquisitions
• Undertaking advanced risk management strategies
• Applying knowledge of business structures and stakeholder relationships to drive business performance in a cost-effective manner
• Analysing business performance and achieve business sustainability
• Implementing marketing strategies to drive sales and support growth
• Applying financial and operational skills for managing and improving farm business
Financial Capacity of the Business
6. It is submitted that Universal Trade Pty Ltd has the financial capacity to pay for its capital expenses, workforce and indirect and operational expenses. It has ample funds to meet costs, such as salaries, raw materials, employee T&E, emergencies and funding new business opportunities and other obligations.
7. Rosita Luk has a strong financial health and has a steady flow of income, strong returns on investments, a cash balance that is growing and is on track to continue to grow. She has a positive net worth which represents that she has enough monetary resources at her disposal for current or future use. She is on the track to reach her goals and without putting herself at undue financial risk if the unexpected occurs.
Evidence of the Financial Strength of Rosita and Her Husband, Martin (Personal Assets/Net Worth, Income and Tax returns)
8. Rosita has many profitable businesses in her name. She is a tax agent and holds the Directorship of Universal Professional Services Pty Ltd (accounting firm) along with her husband Martin. The company’s shareholding is equally divided between Rosita and Martin as evident from ASIC Extract of UPS [attachment 4]. The following documents testifies that there is no outstanding debt in the name of Universal Professional Services Pty Ltd:
• Universal Professional Services Income Tax Transaction [attachment 5]
• Universal Professional Services PL Activity Statement Transaction [attachment 6]
• BAS (April-June 2023) and payment confirmation [attachment 7]
• Super (April-June 2023) and payment confirmation [attachment 8]
9. Rosita and Martin are also the Directors of the farm, Orange Towac Valley Pty Ltd located at 621 Canobolas Road, Canobolas NSW 2800. The company’s shareholding is equally divided between Rosita and Martin, as evident from the ASIC Extract of OTV [attachment 9]. The following documents testifies that there is no outstanding debt of Rosita’s Orange Towac Valley Pty Ltd:
• OTV Activity Statement Transaction [attachment 10]
• OTV Income Tax Account Transaction [attachment 11]
10. Also, Rosita is the sole Director of Universal Trade Pty Ltd as evident from the ASIC Extract of Universal Trade Pty Ltd [attachment 12]. It is evident from the Universal Trade Income Tax Transaction [attachment 13] that there is no outstanding debt in the name of Universal Trade Pty Ltd.
11. Rosita has loaned money and earns interest thereon. There are four loan agreements [attachment 14] worth $2,512,881.02 ($1,485,764.35 + $200,000 + $500,000 + $327,116.67). Rosita gains substantial interest from these loan amounts.
12. Rosita owns many properties. She jointly owns the property with Martin at 6 Mercury Street, Beverly Hills NSW 2209, where they live (her matrimonial home). This property was purchased in 2015 for $2.1 million and has no mortgage. The current valuation of the property at Beverly Hills by Westpac [attachment 15] is $2.5 million.
13. Another property located at 8 Celbes Street, Ashtonfield, is jointly owned by Rosita and her client as evident from the records of Land Registry Services [attachment 16] and that too has no mortgage. This property was purchased in 2015 for $520,000, the current valuation of the property at Ashtonfield [attachment 17] as per River Reality (real estate agent) is $550,000 to $650,000.
14. In addition, as per the notice of valuation by NSW government [attachment 18], Rosita & Martin owns the farmland located at 621 Canobolas Road, Canobolas (Orange Towac Valley) and the current land value is $1.2 million which is further testified by the Cabonne Council rates and charges notice
19. This land was purchased for 900,000 in 2015 with four water licences [attachment 20] at $100,000 each and costed $1.3 million. The current land value is $1.2 million and building, and insurance value is $641,000 ($123,000 + $518,000). (NRMA farm insurance21 –$123,000 and building value - $518,000). Therefore, the total value is $1,841,000 plus the farm and green house equipment, which is worth approximately $500,000, This land has no mortgage. So, the current valuation of the farm is approximately 2 million.
15. Rosita and Martin also own shares of Commonwealth Bank and shares of NRMA insurance Australia:
• CBA shares worth $57,942 held by Rosita
• CBA shares worth $72,975.60, held by Martin
• IAG shares worth $16,274.08, as evident from the share market portfolio [attachment 22].
16. Rosita has also loaned a fund of approximately $1 million to her business partner overseas to invest in farming.
17. Furthermore, Martin owns two car space at Hurstville, which are worth approximately $150,000. This property is used as storage and build in shed.
18. It is evident from the BAS of Rosita [attachment 23] and individual Income Tax Returns of Rosita and Martin [attachment 24], that they do not owe any money to Australian Tax Office.
19. It must also be noted that there is no mortgage on any of the properties owned by Rosita and Martin.
20. Furthermore, Rosita has invested $3 million in Kogarah land which was purchased by Landmark Element Pty Ltd for $11,600,000 and stamp duties of $752,490. The current valuation of the land is $13,835,000 as evident from Princess Highway Kogarah Valuation Report [attachment 25]. As per the declaration by Landmark Element Pty Ltd [attachment 26], the site is currently rezoning to have 40 residential units with 2 and 3 units bedroom on top of the service apartment and there are a number of offers to purchase this development site for 30 million. If the land is sold for development site, Rosita and her husband will get 30% of the sale value, which is estimated to be approximately $10 million.
21. Rosita has made the following projections for the Universal Trade income (with and without Greenhouse) and upcoming capital expenses/investments over the next 2 years.
Without Green House
22. Universal Trade Pty Ltd plans to provide bed & breakfast facility to the visitors visiting farm. The company selected Louis Goulimis from Solid Void to organise the Home Stay & Bed and Breakfast.
23. Louis Goulimis from Solid Void (development, design and project management consultants of the built environment) has informed Rosita that transportable buildings and glass house will not need a DA or any approval (due to its size). It is estimated that eight Echo Houses can be set up within 2 months at a cost of $96,000 ($8,000 per echo house) plus $10,000 for plumbing and electricity connection.
25. Each Echo House will have two bedrooms and will cost $200 per night for two people to stay, which means that the total revenue per night for 8 echo houses will be $3,200, which comes to $1,168,000 annually ($3,200 x 365 days).
26. The directors are affirmative of the progress of this business as they have vast connections with travel agencies of the area. As Rosita, the Director of Universal Trade Pty Ltd is also a solicitor she has multiple clients which are travel agencies including Global Group, Study Travel Group, and Southern Hemisphere Travel Services Pty Ltd, which would promote the overseas visitors from China, Hong Kong, New Zealand, USA and UK to stay at the farm.
27. For instance, Rosita’s client, Southern Hemisphere Travel Services Pty Ltd, a travel agency, is currently catering 4000 groups per year. Each group has 16 to 30 people and they have ensured Rosita that they will utilise the services of Rosita’s bed and breakfast all over the year and also in case the farm is not able to accommodate all of them, he will organise the local motel/hotel for the remaining visitors to stay.
28. The estimated yearly expenses of the 8 Echo houses will include:
o Cleaning expenses which will be approximately $30 per room which comes to $480 per day. The yearly cleaning expenses will be $175,200 ($30 x 16 room x 365 days).
o Electricity expenses is estimated to be $1,000 per month which comes to $12,000 per year ($1,000 x 12 months). o Insurance expenses is estimated to be $500 per month which comes to $6,000 per year ($500 x 12 months).
o Repair and maintenance expenses is estimated to be approximately $2,000 per echo house yearly, which comes to a total of $24,000 ($2,000 x12) per year for 8 echo houses. (Total estimated yearly expenses = $217,200) 29. Therefore, the estimated revenue of the Universal Trade Pty Ltd bed and breakfast facility is much higher than the estimated expenses.
With Green House
30. The green house horticulture will lead to increase crop yields and business will be able to produce more food as the greenhouse extends the growing season and provide year-round growth conditions for vegetables and fruits, which is important in Australia, where weather conditions vary significantly from season to season.
31. As the export market for green house vegetables and fruits is flourishing, the business will be able to produce more in order to cater to the needs of the local customers as well as the overseas customers.
32. It is estimated that for the first year, the greenhouse horticulture will generate an income of $25,000 per week, which comes to $1,300,000 annually ($25,000 x 52 weeks) and for the second year $50,000 per week, which comes to $2,600,000 annually ($50,000 x 52 weeks).
33. It is projected that the business will flourish per year and by the fourth year it will be generating an income of $5.2 million ($100,000 x 52 weeks).
34. The estimated labour cost of the business for the first year will include salaries (average) of:
• Marketing manager = $300,000 per annum,
• Farm manager = $200,000 per annum,
• Five farm workers = $120,000 per annum,
The total will be approximately $620,000 and by year four it is estimated to reach $1.1 million.
35. Moreover, the projected income from sales of fresh eggs of the farm is approximately $300,000 per annum.
36. Therefore, it is evident that Rosita has the financial strength to pay her employees and for other business expenses. Her personal assets and income show the signs of her financial wellbeing. Moreover, with or without green house, Universal Trade Pty Ltd has forecasted enough profits to carry on the business operations smoothly.
37. Independent audit letter [attachment 27] prepared by Augustine Hwasung Ko, North Shore Accountants, after examining financial records, accounts, business and personal transactions as well as assets of Rosita, testifies its financial strength to incur business expenses including the salaries of the employees.
Conclusion
38. Hence, it can be concluded that state and stability of Rosita’s and her husband’s personal finances testifies their financial strength to pay the salary of the employees, ride out shortterm rough patches, cover longer-term debt and obligations as well as convert inputs into cash flow. I declare that the information I have provided in this document is, to the best of my knowledge, true and accurate and I am aware of the penalties for providing misleading or false information to the Commonwealth.
Should you require any additional information for a successful finalization, please do not hesitate to contact us.
…
34. The attachments were as described in the submissions.
35. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
36. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Application requirements – reg 5.19(4)(a)
37. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

38. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
39. Further, if the subclass identified in the application is subclass 187, the application must be made before 16 November 2019.
40. The Tribunal has reviewed the material on the Department’s file and is satisfied that the applicant made the application on the appropriate form, and identified in that form the nominated position and occupation and the identity of the nominee and the subclass and stream of the nomination. The Tribunal is further satisfied that the nomination application contains the s.245AR certification required. The Tribunal notes that as this is a regional nomination, no prescribed fee was payable. Finally, the Tribunal is satisfied that the applicant paid the required nomination training contribution charge.
41. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

No adverse information known to Immigration – reg 5.19(4)(b)
42. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
43. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).

44. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.

Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
45. The Department’s records indicate that the nominee connected to this nomination case, Mr Xiaoming Zhong, was alleged by the Department to have worked in Australia in breach of the conditions of his business visitor visa (in particular, condition 8101, which imposes a ‘no work’ condition). As discussed with Ms Luk and her agent at the hearing, the Tribunal notes that an earlier Tribunal decision (1608729, made by a different Tribunal Member) made in December 2017 to affirm a Department decision to refuse to approve an earlier nomination of Mr Zhong by the applicant for a subclass 186 visa found that Mr Zhong had breached condition 8101 of his visitor visa by working in Australia for several periods in 2015 and 2016. The Tribunal (differently constituted) found that this constituted ‘adverse information’ for the purposes of r.5.19(4)(f) (as it then was) and that there were no reasons to disregard this information. In reaching this conclusion, the Tribunal (differently constituted) did not accept the evidence of Ms Luk, her husband Mr Ma and the nominee Mr Zhong that he had not worked in Australia and placed weight on documentary evidence stating that he was. It found that working without permission was serious and undermined the Australian migration program, and therefore it was not reasonable to disregard this adverse information.

46.     As noted above, at the hearing for this matter, Ms Luk emphatically denied that Mr Zhong had breached the conditions of his previous visitor visa(s) and maintained that there had been a misunderstanding by the Department of what Mr Zhong had done while in Australia, plus a mistake on the part of Ms Luk and the former agent in stating in a document submitted to the Department that Mr Zhong had been working and prepared a report on the business feasibility of exporting spring water while in Australia. She asserted that he had not prepared that report, and had not worked in Australia in breach of his conditions, and that the statement in the report to the contrary was a mistake.
47.     The Tribunal has considered this issue carefully and finds that the reasons set out by the Presiding Member in the previous Tribunal decision are persuasive, and it finds that Mr Zhong did work in breach of condition 8101 imposed on his previous visas in 2015 and 2016, as it is satisfied that he undertook activities for which he was paid, or which would normally attract remuneration, in Australia. The Tribunal is further satisfied that this constitutes ‘adverse information’ relating to a former employee or consultant of the applicant.
48.     The Tribunal has therefore gone on to consider whether it is reasonable to disregard this information.
49.     Given the amount of time that has elapsed since these events took place (now some 6 to 7 years), the fact that there has been no repetition of the breaches as the nominee Mr Zhong has been offshore since October 2017, and the remorse for any confusion expressed by Ms Luk in the hearing for the present matter, the Tribunal considers it reasonable to disregard the above adverse information for the purposes of this nomination application.
50. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

Mandatory licencing, registration and memberships – reg 5.19(4)(c)
51.     Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
52.     In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Sales and Marketing Manager and the date of application is 3 June 2023.
53.     The Tribunal is satisfied that there is no requirement in New South Wales for a Sales and Marketing Manager to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in that occupation.
54. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

Satisfactory compliance with employment laws - reg 5.19(4)(d)
55. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
56. The applicant’s agent has provided a statement to the effect that nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of New South Wales, and there is no evidence before the Tribunal to the contrary.
57. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

Training contribution debts – reg 5.19(4)(da)
58. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
59. There is no evidence in the Department’s records to indicate that the applicant owes any debt in relation to a training contribution charge.
60. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

Actively and lawfully operating business – reg 5.19(9)(a)
61.     Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
62.     The Tribunal is satisfied that the applicant company is currently registered with the Australian Securities and Investments Commission (ASIC), and is currently lodging Business Activity Statements (BAS) with the Australian Taxation Office (ATO).
63.     The Tribunal has considered the letter of the company’s accountants, North Shore Accountants, dated 5 September 2023, in which it is asserted that:
Universal Trade Pty Ltd: Ms Rosita Luk is the sole director and shareholder. While the company’s financial information has been provided previously, it’s worth noting that the company’s financial health is positive despite initial losses due to wages paid to directors…
2. Projected Income and Cash Flow:
(a) Ecotourism Cabinet – Installation of six Ecotourism Cabinets, generating estimated yearly income of $876,000, managed through connections with the tourism companies.
(b) Glass Greenhouse: Planned installation of a glass greenhouse is expected to yield $2.5 million per annum. The farm’s property ownership without mortgages ensures minimal expenses.
(c) Grocery Wholesale Business: The existing business generates approximately $3 million inn annual turnover, further contributing to the company’s cash flow…
3. Projected Income from Greenhouse and Bed and Breakfast:
(a) Greenhouse Horticulture: The proposed glass greenhouse is projected to generate a yearly income of $2.5 million providing year-round growth conditions for vegetables and fruits. This venture not only addresses local needs but also taps into the flourishing export market for greenhouse produce.
(b) Bed and Breakfast Facility: The installation of eight Echo Houses, generating $1,168,000 annually, showcases the company’s strategic expansion into the hospitality sector. The strong connection with travel agencies and tourism companies ensure a consistent influx of visitor, resulting in a steady revenue stream…
In light of the above information, it is clear that Universal Trade Pty Ltd, under the direction of Ms Rosita Luk, has a robust and diversified financial portfolio. The various income streams, investments and property ownership demonstrate the company’s financial capacity to support the proposed sponsored workers. There is no doubt that the company possesses the financial strength required to meet the salary expectations for overseas workers.
…
64.     The Tribunal notes that many of the sources of income listed for the applicant company, Universal Trade Pty Ltd, are yet to come to come to fruition. In the Tribunal’s view, this projected income must therefore be regarded as speculative at the time of the Tribunal’s decision. Moreover, while the Tribunal accepts that Ms Luk is involved in several other companies, and has significant personal investments and income streams, the Tribunal is required to consider whether the applicant company itself is actively and lawfully operating in Australia, regardless of whether its director has other sources of income and companies.
65.     The Tribunal notes that the most recent financial statements for the applicant are for 2021/2022 and 2022/2023. The financial statements for 2021/2022 indicate that the total revenue for that financial year was $1,026,836, that there was a net loss for that financial year of $462,546, and that there were accumulated losses at the end of that financial year of $1,001,417.
66.     However, the financial statements from 2022/2023 indicate that the total revenue for that financial year was $1,155,286, and that there was a net profit for that financial year of $472,747.
67.     The Tribunal accepts from the above that the applicant company is lawfully and actively operating a business in Australia.
68.     The Tribunal has considered below whether the applicant has the financial capacity to employ the proposed nominee at the proposed salary.
69. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.

Labour hire businesses – reg 5.19(9)(b)
70. Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
71. There is no evidence before the Tribunal to indicate that the applicant’s business activities include labour hire to other unrelated businesses.
72. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.

Genuine need for employment – regs 5.19(9)(c) and (d)
73. Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.

As noted above, the delegate refused the application in September 2019 on the basis the applicant’s nomination did not satisfy reg 5.19(4)(f) of the Regulations because the delegate did not accept that the applicant had a genuine need for the nominated position. The delegate noted that the applicant had previously unsuccessfully nominated the nominee as its Chief Executive or Managing Director, and that he was also a current director and shareholder of the applicant company. The delegate found that it was not clear whether the nominated position was an existing one or a new position, or that it was genuinely needed within the applicant’s business, particularly as that business did not employ many employees, indicating that a relatively senior management position of Sales and Marketing Manager was not needed within the business.
In the submissions made to the Tribunal by Ms Luk and her agent in writing and in evidence at hearing, they made the following points (in summary):
·the applicant’s business had pivoted significantly since 2019, such that exporting its produce was part of its current operations and was intended to be a significant part of its future income stream;
·it had sold off its restaurant operation and was in the process of gaining approval to construct a substantial greenhouse on the farm in the Orange-Towac valley, which would significantly increase the produce for export (as well as for domestic sales);
·it was developing its operations to include guest accommodation and was targeting Chinese tourists; and
·there was thus a genuine need for a full time Sales and Marketing Manager, and this role could not be carried out by Ms Luk, as she had significant responsibilities for other businesses and business ventures that she operated, and she had also experienced serious ill health in recent years and would most likely undergo another major operation in late 2023. She therefore did not have the expertise or physical capacity to fill this role within the applicant company.
In response to the Tribunal querying the fact that the nominee in this case remained overseas and could not obtain a subclass 187 visa now as that visa program had been closed in November 2019, Ms Luk said that it would be easier and more effective if the nominee were able to relocate to Australia to undertake this role as he had relevant experience, qualifications, and in-depth knowledge of the applicant’s business operations.
The Tribunal has considered these submissions carefully but is not satisfied that they establish that the applicant has a genuine need for a Sales and Marketing Manager within the Australian business. While it accepts that the nature of the applicant’s business operations has changed since the time of the delegate’s decision, and that it now includes a component of accommodation and exported produce, the Tribunal is not satisfied that its current activities require an in-house Sales and Marketing Manager in Australia. Ms Luk’s evidence at hearing was that the nominee was currently assisting the applicant at times, from China, where he resides. This arrangement appears to served the applicant’s needs to date, and the Tribunal considers that this will most likely continue to be the case, until when and if the greenhouse and guest accommodation are constructed and the exports and guests increase significantly. While Ms Luk displayed great confidence that this would occur in the near future, the Tribunal is not as sanguine, particularly given the protracted planning approval process she described to date for these projects.
Given the above, the Tribunal is not satisfied that the applicant has a genuine need for an Sales and Marketing Manager now.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(d) is met. Accordingly, reg 5.19(4)(f) is not met.
Future employment – regs 5.19(9)(e), (f) and (g)
80.     Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
81. Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
82. Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
83. Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
84. The most recent contract specifying this salary level is dated 21 September 2022 and states that the nominee’s salary will be $177,500 per year plus superannuation. The Tribunal is satisfied that the terms of this contract do not include an express exclusion of the possibility of extending the nominee’s period of employment, and it finds that r.5.19(9)(f) is met.
85.     Ms Luk, her agent and her accountant submitted that the applicant had the financial capacity to pay the nominee this salary for at least 2 years on a full time basis, particularly given Ms Luk’s other businesses and income streams. As noted above, however, the Tribunal must be satisfied that the applicant company itself – who is the nominator – has this financial capacity, as Ms Luk cannot be compelled to provide resources from her other business operations to supplement any short fall on the part of the nominating employer.
86.     As noted above, the Tribunal has reviewed the most recent financial statements for the applicant, from 2022/2023, and is satisfied that they show a total trading profit of $974,000, a net profit of approximately $427,000, plus a wages item in the expenditure column of $190,560. The Tribunal is therefore satisfied that the applicant does have the financial capacity to employ the nominee on the proposed salary for at least 2 years on a full time basis.
87. As discussed at the hearing, the Tribunal notes that the nominee Mr Zhong resides in China, and as conceded by Ms Luk, the subclass 187 visa program associated with this nomination closed in November 2019, meaning that it is now not possible for the nominee to be granted a subclass 187 visa (or any other visa) in connection with this nomination. Given the absence of a visa for the nominee to return to Australia to take up the nominated position, the Tribunal is not satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years. It therefore finds that r.5.19(9)(e) is not met.
88. Given the above findings, the Tribunal is satisfied that while regs 5.19(9)(f) and (g) are met, r.5.19(9)(e) is not met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033 [currently $250,000]. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT) (currently $53,900), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The Tribunal notes that there is no equivalent Australian employee to the nominee in the business, and that the proposed annual salary of AUD $177,500 plus superannuation as set out in the most recent employment contract dated 21 September 2022.
The Tribunal accepts that there is no Award applicable to the nominated occupation of Sales and Marketing Manager, and in these circumstances, item 8 of IMMI 18/033 states that the annual market salary rate that applies is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information. Item 4 states that ‘relevant information’ may include, but is not limited to:
(a) information on the Australian government’s Job Outlook website;
(b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
(c) written advice from registered employer associations and/or unions; and
(d) remuneration surveys generated across the relevant industry by a reputable organisation or body.

The Australian government’s Labour Market Insights (formerly Job Outlook) website does not provide an earnings figure for the occupation of Sales and Marketing Manager. However, the following remuneration survey websites (consulted October 2023) provide this information:
·Payscale – average salary for a Sales and Marketing Manager in Australia is $77,037 per year;
·Seek.com.au – average salary for a Sales and Marketing Manager in Australia ranges from $100,000 to $120,000 per year; and
·Glassdoor – average salary range for a Sales and Marketing Manager in Australia is between $72,000 and $133,000 per year.
Given this, the Tribunal considers it reasonable to consider the annual market salary rate for the occupation of Sales and Marketing Manager to be approximately midway between the lowest and highest of the above salaries, at approximately $101,000. The Tribunal finds that it has been determined in accordance with IMMI 18/033.
The Tribunal further finds that:
·the annual market salary rate for the nominated occupation is not less than the TSMIT (currently $53,900);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation;
·the nominee’s annual earnings in relation to the occupation will not be less than the TSMIT; and
·there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the nominated occupation.
For these reasons, the Tribunal finds that the requirements of reg 2.72(15)(c), (d), (e), (f) and (g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
98.     Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
99.     There is no evidence before the Tribunal to indicate that there is information known to Immigration indicating that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable to those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location.
100. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
101. Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a subclass 186 (Employer Nomination Scheme) visa, and nominations for a subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a subclass 187 visa.
102.     Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).

103. The nomination application indicates that the applicant’s business, and the nominated position, are located in Canobolas, New South Wales (NSW), postcode 2800. The Tribunal is satisfied that this postcode is listed in the relevant written instrument, IMMI 18/037 as being in regional Australia. The Tribunal therefore finds that r.5.19(12)(a) and (b) are met.
104. In relation to whether the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned, the Tribunal notes that on behalf of the applicant, it was argued that the position was specialised, and that no suitable candidates could be found. The Tribunal notes that the most recent Skills Priority List issued by the Australian government’s National Skills Commission (issued late 2022) does not list the occupation of Sales and Marketing Manager as being in short supply in any state in Australia.
105. The Tribunal is mindful that the purpose of the Regional Skilled Migration Scheme is to enable regional Australian businesses to employ skilled workers when there are none available locally, and that it was not created to be a vehicle for obtaining permanent residence for a non-Australian where a local candidate could be found (even if they were not the preferred candidate).
106. Having weighed the above factors carefully, the Tribunal is not satisfied that the nominated position could not be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned. Accordingly, it is not satisfied that r.5.19(12)(c) is met.
107. The Tribunal is satisfied that the occupation of Sales and Marketing Manager is contained in the relevant written instrument, LIN 19/047, and is not subject to any occupational caveats or requirements.
108. The Tribunal has compared the duties set out in the position description provided by the applicant with the duties listed for the occupation of Sales and Marketing Manager in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary.
109. The position description provided by the applicant to the Department for its position of Sales and Marketing Manager contains the following duties:
…
·Developing and implementing goods and service promotion strategies as well as sales strategies in order to achieve sales targets agreed with the Management
·Developing strategies to increase customer base for various divisions through direction and implementation of carefully tailored promotion and customer retention strategies
·Planning, directing controlling and coordinating sales and marketing activities while also setting sales and marketing KPIs to manage activity within the team
·Researching potential target industries and customers
·Responsible for executing and implementing strategies to increase customer loyalty
·Training and supervising personals [sic] in sales and marketing team
·Developing and implementing after-sales service procedures
·Responsible for the development and implementation of strategies to ensure building, maintaining and improving company’s reputation amongst all of its stakeholders
·Researching, planning and implementing new product or mix of product introductions to meet customers’ needs
·Preparing and attend expo or similar fairs to promote company, its products and brand building
·Responsible for brand promotion and as such will need to develop and implement strategies to ensure brand awareness in company’s customer base
·Establishing strategies to fully promote the company’s product and services to as many people as possible
·Setting sale and marketing KPIs to manage activity within the team
·Putting together a content marketing strategy for the company
·Responsible for developing and implementing strategies to ensure effective management of complaints, requests and inquiries.
…

110. The current version of ANZSCO provides the following occupational description:
…
1311 Advertising, Public Relations and Sales Managers
Advertising, Public Relations and Sales Managers plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:

directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty

directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible

directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'

directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

Occupations:

131112 Sales and Marketing Manager

131113 Advertising Manager

131114 Public Relations Manager

131112 Sales and Marketing Manager
Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
Specialisations:

Business Development Manager

Market Research Manager

…
111. The Tribunal is satisfied that the duties in the position description largely align with the duties set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary occupational description for a Sales and Marketing Manager. Accordingly, it finds that r.5.19(12)(d) and (e) are met.
112. The Tribunal is satisfied that the applicant provided a certification dated 10 July 2019 from the relevant Regional Certifying Body (RCB), Regional Development Australia Central West. Accordingly, the Tribunal finds that r.5.19(12)(f) is met.

Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Conclusion
Although the Tribunal has found that many of the criteria in r.5.19 are met, it is not satisfied that rr.5.19(9)(d) and (e) met. For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19 as a whole. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
115. The Tribunal affirms the decision under review to refuse the nomination.
Alison Mercer
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2023] AATA 3713

26 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal

Source	Minimum	Maximum	Average
Careerone	$90,000.00	$95,000.00	$92,500.00
Workforce Australia	$90,000.00	$100,000.00	$95,000.00
Salary.com	-	-	$171,589.00
Average	$90,000.00	$97,500.00	$119,696.33