VIKING SAUNA PTY LTD (Migration)

VIKING SAUNA PTY LTD (Migration) [2021] AATA 1431 (14 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  VIKING SAUNA PTY LTD
CASE NUMBER:  1818223
HOME AFFAIRS REFERENCE(S):          BCC2017/3114280
MEMBER:Warren Stooke AM
DATE:14 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 May 2021 at 2:14pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – contribution to business and employment for 2 years in 3-year period before application made – future employment for 2 years – continuing operation and profitability of business – nominee’s duties and responsibilities – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)

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 13 June 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 28 August 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream for the position of Marketing Specialist – ANZSCO Code: 225113.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r. 5.19(3)(d)(i) of the Regulations because the nominator did not provide any verifiable financials document to support their claim to show that the position has in fact contributed to the business as was proposed in the 457 nomination application. The nominator also did not provide any substantive evidence to demonstrate the nominee actively undertook the duties, tasks and responsibilities of the position on a full time basis the over past two years.
The applicant appeared before the Tribunal on 25 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Kar Nei Sherry Kwok, the nominee, and Mr Chung Ip Liu.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 13 June 2018 and that he understood the content of the decision. In this regard, the applicant stated that the nominee’s tasks did not match the qualification of the job description and the performance of the position.
The applicant confirmed to the Tribunal that he provided a copy of the delegate’s decision to the Tribunal with the applicants appeal application.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant provided evidence that the nominating business, Viking Sauna Pty Ltd, was first registered with the ASIC on 4 March 2000; has an ABN: 45 002 075 149 and the applicant who appeared before the Tribunal, Mr Brian Jones, is a former owner/operator of the business and the original nominating sponsor. Mr Jones is currently a director of the business following his retirement and continues to be available to the business for consultation and advice.
The applicant provided evidence of a s245AR(1) signed declaration, which was dated 17 July 2017.
The applicant provided evidence that the business is engaged in the manufacture, supply and installation of saunas and steam room equipment in swimming pools; gyms and private residences. He stated that the saunas are sourced from Scandinavia and are constructed of western red cedar timber.
The applicant stated that the business was originally taken over from Tyco in the late 1990’s, as Viking Sauna Pty Ltd.
The applicant stated that the current owner is Mr Ching Wing Mak (the spouse of the nominee for the position of Marketing Specialist).
The applicant provided evidence that the organisation comprises of two directors and eight employees. The eight employees include 5 persons, who are permanent residents and 3 employees on temporary visas (including 2 persons on 457 visas). In addition, the business engages 8 sub-contractors.
The applicant provided evidence that the nominee was provided with a Fair Work Information Statement at the time of employment.
The applicant provided evidence of the duties performed by the nominee in the position of Marketing Specialist, as follows:
a.Marketing and new product development;
b.Research of materials and sourcing new customers;
c.Investigating social media and undertaking general advertising.
The applicant stated that the business needed a Marketing Specialist with the qualifications held by the nominee, Ms Kwok, whom he became aware of through a supplier and she became an employee for the company.
The applicant stated that the nominee has been employed on a full-time basis on an initial salary of $56,000 since April 2015.
The applicant stated that market testing was undertaken by the business through an advertisement in the local paper, which was circulated in the North Shore, as the business was located at Gladesville at the time. The applicant stated that he employed the nominee because she was available and suitably qualified and the nominee had been recommended strongly by the importers of the main product.
The applicant provided evidence that the salary range for a Marketing Specialist was between $60,000 and $80,000.
The applicant provided the Tribunal with copies of two contracts of employment, with the first dated 14 March 2015, with a salary of $56,000 and the second dated, 18 December 2020, with a salary of $70,200 and containing a contribution of 9.5 per cent to superannuation and a commitment to employee the nominee for at least 2 years following the grant of a 186 visa, with the further possibility for renewal.
The applicant provided evidence that the nominee was granted a 457 visa on 15 April 2015 for the position of Marketing Specialist – ANZSCO Code: 225113 and that the visa was subject to an 8501 maintenance of health fund insurance obligation. In this regard, evidence was provided that the nominee held Nib Health Insurance, which is paid monthly.
The applicant provided evidence that the nominee had undertaken an EILTS English language test on 27 September 2014 and achieved an overall score of 7.5.
The applicant provided a skills assessment from VETASSESS for the nominee, dated 7 April 2017, with the designation of ‘successful’.
The evidence provided prior to hearing identified that the nominee holds a Bachelor of Arts and Social Science (1992) from the Hong Kong Baptist University and a Graduate Diploma of Business Management completed (1994) at the Chinese University, Hong Kong
The applicant provided evidence that training had been provided to Cliff Paterson, an Australian Citizen employed by the company.
The applicant provided evidence of the financial performance of the business, from the ATO Taxation returns, which included the following:

2019

2020

Total Income

$968,243

$997,938

Total Expenditure

$953,139

$924,376

Profit

$15,104

$73,562

The applicant provided evidence of the salary paid to the nominee, from the nominee’s ATO Taxation returns, which included the following:
a.2020 - $72,470
b.2019 - $69,431
c.2018 - $71,942
d.2017 - $66,280
e.2016 - $53,581
Witness Evidence of Kar Nei Sherry Kwok (the nominee)
The witness provided evidence that the position of Marketing Specialist – ANZSCO Code: 225113, included the following responsibilities and duties:
a.Time expended on planning and development of new products;
b.Research of social media;
c.Interfacing with customers in the showroom to gain feedback;
d.Talk to Customer Service personnel re feedback;
e.Effect pricing given that it is hard to find a competitive website;
f.Contact with Tyco, the suppliers from Sweden and Finland.
The witness stated that her husband (Mak Ching Wing) is the owner of the business.
The witness provided evidence that she has a son, who is studying at the University of New South Wales.
The witness stated that she was last in Hong Kong in 2016 and that she was originally employed by Viking Sauna on a 457 visa in 2015 and joined the company in July 2015.
Witness Evidence of Mr Chung Ip Liu (the company secretary)
The witness stated that he is the company secretary and prepares the ASIC returns and undertakes the book-keeping and accounts for the business, together with managing accounts payable and submission of the business’s tax returns.
The witness stated that he confirmed in a letter that the financials for the business are correct and correspond with the information contained in the accounts that he maintains.
The witness stated that the profitability of the business is capable of providing employment for the nominee for at least two years.
The application must be compliant: r.5.19(3)(a)
The applicant lodged the most recent application to nominate the nominee for the position of Marketing Specialist – ANZSCO Code: 225113 with the business on 28 August 2017 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Further, the Tribunal is satisfied that the business is profitable and has contemporary contracts with numerous entities to provide sauna and steam equipment to commercial entities and private residences that ensures the viable ongoing performance of the business. In this regard, the Tribunal accepts that the registered business has employed the nominee to develop the business and has demonstrated it is able to meet its employment obligations for the next two years, from the grant of a 457 visa, as has been evidenced since 15 April 2015.
The Tribunal accepts that the business can meet its financial obligations and employ the nominee in the position of Marketing Specialist – ANZSCO Code: 225113.
Accordingly, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Tribunal is satisfied that the applicant has been the sponsor of the nominee, whilst a 457 visa holder, from 15 April 2015 and has complied with the requisite obligations pertaining to sponsorship.
Further, the Tribunal is satisfied that Viking Sauna Pty Ltd business was registered with ASIC on 4 March 2000 with an assigned ABN: 45 002 075 149 and that there is no evidence before the Tribunal that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
The evidence before the Tribunal is that the nominee was continuously employed by the applicant from 15 April 2015 on a 457 visa, which was prior to application for a 186 Direct Entry Stream visa of 28 August 2017 and the employment has continued subsequent to the delegate’s decision of 13 June 2018. In this regard, the contract of employment will apply from the date of the grant of a 186 visa and provides employment for a period that exceeds 2 years with the potential to renew the contract.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 18 December 2020 and that the nominee has a contract of not less than 2 years, with an undertaking to employ the nominee for a minimum period of two years from the grant of the visa. In this regard, the evidence identified that the nominee will be paid a salary of $70,200 per annum, together with 9.5 per cent superannuation for the position of Marketing Specialist.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018.
As set out in paragraph 57 above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore, the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 15 April 2015 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant stated that the nominee is paid a salary of $70,200 per annum, plus 9.5 per cent superannuation.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal is satisfied on the basis of the evidence that the business requires the position of Marketing Specialist – ANZSCO Code: 225113 given the size and turnover of the business and the evidence of the completed contracts that have been provided to the Tribunal.
Further, the Tribunal is satisfied that the business is a local distributor of a specialised Scandinavian product that requires compliance with product standards for the supply and installation, which is supported by market research and customer feedback.
Accordingly, the requirement in r.5.19(3)(i) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Warren Stooke AM
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)      is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)       both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)      all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)       the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)      it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2021] AATA 1431

14 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

2019	2020
Total Income	$968,243	$997,938
Total Expenditure	$953,139	$924,376
Profit	$15,104	$73,562